X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When his client’s rape trial ended in a hung jury, a defense attorney decided to hire some of the jurors to get advice. Some cried “foul,” but hiring used jurors is an ever more common practice, although it hasn’t been talked about much. And while in most states hiring a juror is not a crime or unethical under professional conduct rules, some in the legal community think it’s just not right. In the recent case, Gregory Haidl, 19, the son of a wealthy Orange County, Calif., assistant sheriff, and two of his friends, allegedly gang raped an apparently unconscious 16-year-old girl, and videotaped it. The jury hung, leaning toward acquittal on most of the 55 counts after nearly two months of trial. It’s common for lawyers to want to interview jurors after a trial. Often they don’t want to talk, but not so in Haidl’s case. According to Haidl’s lead counsel, Irvine, Calif., solo practitioner Joseph G. Cavallo, jurors are lining up to work with him. And although all but one of nine has offered to do it for free, Cavallo wants to pay them all. “I think they should be compensated because they’re spending time on the case, time from what they would rather be doing, I’m sure,” said Cavallo. “I’m thinking about $50 an hour. It seems to be a reasonable amount.” He doesn’t want their help to pick the next jury, Cavallo said. “I’m more interested in the analysis of the evidence — a roundtable kind of thing — going over the witnesses, using them as a right hand — but they will not be in the courtroom.” The person Cavallo most wants to work with is the one who didn’t offer to work gratis. He was one of three alternates, and he thought Haidl was guilty. “The lone juror who wants money was an alternate and he had an analysis that was contrary to a not guilty verdict,” Cavallo said. “I’m most interested in someone telling me where our faults lie, and he seems to have quite a lot of information for us.” Lawyers hiring former jurors goes back at least two decades. [NLJ, 12/30/85]. In a 1985 rape case, Michael Sherman, now of Sherman, Richichi & Hickey of Stamford, Conn., hired one of the five jurors who voted to acquit on the six-person jury. “I didn’t use her for jury selection,” Sherman said. “I asked her how each piece played the first time.” Not only did the jury convict his client the second time around, but in response to his perceived affront to the jury system, Connecticut passed a statute making it a misdemeanor for a juror to get paid to advise or consult on a retrial or a separate trial “arising out of the same transaction or offense involving the same or different parties.” Sherman sees the humor in this. “Some people get a bridge named after them; I get a misdemeanor,” he said. While an attorney who hires a former juror is not a subject of the statute, the lawyer might be liable for aiding and abetting a misdemeanor, which is a misdemeanor in Connecticut, and he or she would almost certainly face charges of professional misconduct. At times, jury consultants will hire used jurors — one degree of separation from their lawyer-clients, but not always in cases that have been declared mistrials. “Sure, we’ve done it,” said James Dobson, the director of Lynbrook, N.Y.’s DOAR Litigation Support & Trial Services. “For certain cases where there are implications for other cases or because it was a significant matter … but it’s far more the exception than the rule.” Dobson asserted that DOAR would only pay an honorarium for a juror’s time, “but nothing beyond that. We would not over-incentivize or competitively bid for their services.” BELNICK TRIAL Dobson said that jury consultants are talking about Mark Belnick, the former Tyco Inc. general counsel who was acquitted of conspiring to take a $17 million bonus that was not approved by the board, and of taking a $14.5 million interest-free loan that he improperly did not disclose. “Those involved in complex securities litigation — people in the inner circles — are talking about Belnick. We have not spoken to [the Belnick jurors],” Dobson said. “But we’re doing internal research based on their post-trial comments that were reported in the press. You can’t make a generalization that the Belnick case is in fact similar to your case. What we’ll also do is a content analysis of the transcript to identify the consistencies and the dissimilarities between that case and the cases that we’re working on.” Like Dobson, Robert Hirschhorn, an attorney turned full-time jury consultant at Cathy E. Bennett & Associates of Lewisville, Texas, has often spoken to jurors after trial without paying them. He has hired a juror after a mistrial but won’t say when or for whom, just that he spent dozens of hours with the juror. He also worked on the Robert Durst case. Durst, a millionaire, was accused of murdering a 71-year-old Texas man. He admitted to dismembering the body, but claimed he killed in self-defense. The jury acquitted him. “We talked to the alternates in the judge’s chambers — while the real jury was deliberating,” Hirschhorn said. “They were impressed that the defendant took a position and stuck with it — and stuff you don’t think about, too — how they noticed the $1,000 cowboy boots DeGuerin wore.” Dick DeGuerin, a partner at Houston’s DeGuerin Dickson & Hennessy, was Durst’s lead counsel in the case. “It becomes critically important after a hung jury or mistrial,” Hirschhorn said. “To learn about the strengths — and weaknesses — what to emphasize and diffuse — and what kind of jurors seem to be open and which seem not to be.” If there were no proscriptions against contacting jurors and he was going to ask them to spend several hours, Hirschorn has no compunction against paying them for their time. There is a proscription against hiring ex-jurors in California that Cavallo is now familiar with. It is jury tampering to hire a juror for more than $50 within 90 days of being discharged. Because of scheduling conflicts between defense attorneys, Cavallo doesn’t expect the retrial to begin until early 2005. The statute also criminalizes an offer or an agreement to confer payment made within 90 days. Many ethicists see hiring jurors as just good lawyering. Monroe Freedman, an ethics legal scholar at Hofstra University in Hempstead, N.Y., called it a “form of continuing legal education.” But ethics scholar Jeremy M. Miller, of Chapman University in Orange, Calif., thinks hiring jurors is flat out wrong under any circumstances. “I think there’s already enough criticism leveled at the jury system,” Miller said. “There are hidden motives we can’t do much about, such as prejudgments to punish a person or to free them — we don’t need a profit motive, too.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.