By: Berry Meier and Jonathan Glater, New York Times
Tuesday, May 18, 2004
May 3, 2004
Testimony has finished in the retrial of former Credit Suisse First Boston banker Frank P. Quattrone but the publicity surrounding his and other prominent white-collar criminal cases may make life a little harder for the corporate defendants who follow.
Jury consultants, who advise defense lawyers, say that every newspaper headline and every evening newscast about executives on trial make it more difficult to find sympathetic jurors.
The consultants, whose job is to figure out the types of people who will be most inclined to find in favor of their clients, say that it is increasingly important to determine how the attitudes of prospective jurors have been affected by the coverage of financial scandals. They are finding that the publicity has contributed to new stereotypes in the public's mind about business leaders - most of them bad.
"I think it was all uncharted water pre- Enron," said Susan Macpherson, the vice president of the Midwestern office of the National Jury Project, a consulting group. "We didn't have a national stereotype in our heads about the type of people who get charged with these kinds of crimes."
In addition, because many people had suffered stock market losses, they added, it is important to understand whom a juror blames for those losses.
"It is a rare jury that you talk to now where the majority of people have not lost money in the last couple of years," said Patricia McEvoy, a partner at Zagnoli McEvoy Foley, a jury consulting firm in Chicago. "Everybody's lost money. That's bad for the defendant."
Along with the first trial of Mr. Quattrone and Martha Stewart, jury consultants have recently been used in the trials of executives of Tyco International and the Adelphia Communications on fraud charges.
To be sure, no one is suggesting that executives cannot get a fair trial. And the ability of defense lawyers and consultants, who try to analyze potential jurors through blend of psychology and educated guesswork, to shape a panel is limited.
When allowed by judges, consultants develop questionnaires that seek to draw out information about potential biases among jurors and also assist lawyers in the questioning of those being considered for a panel.
Such questionnaires - or questions that lawyers have a judge ask potential jurors as occurred in the case of Mr. Quattrone - are often tailored to the specifics of a trial.
For example, with much of the evidence against Mr. Quattrone contained in e-mail messages, his lawyers were able to ask whether potential jurors used e-mail, apparently hoping to eliminate those unfamiliar with the technology (and with how easy it is to hit the send message button without premeditation, as Mr. Quattrone claimed to have done with a message for his staff to "clean up those files").
In the Adelphia case, which is continuing, the views of potential jurors about any stock market losses may prove critical because those on trial are accused of a fraud that effectively led to the bankruptcy of the publicly traded cable company.
Before the trial's start, a questionnaire developed by jury consultants working for the defense was sent to potential jurors asking, among other things, about the types of investments they or their spouse had and whether they made their own investment decisions.
They were also questioned about whether they had ever filed a complaint against a brokerage firm or with a regulatory body related to the securities industry.
Several jury consultants said that in cases like Adelphia, they were most interested in learning whom a potential juror blamed for financial losses. And they add that people typically fall into two camps, those who see losses as simply a result of fate and those who believe that corporate executives, like those on trial, have stacked the deck.
"We try to understand what issues exist," said Philip K. Anthony, the chief executive of Decision Quest, a trial consulting firm in Los Angeles. "Is it, 'I lost money and I deserved to' or 'I lost money and it's someone else's fault.' "
Given the news media's intensifying scrutiny of business, some consultants like Ms. Macpherson say they are also try to identify where potential jurors get their information - from a business publication as opposed to a tabloid newspaper - in order to determine how that coverage might have shaped their view.
If there is one type of juror that consultants appear to want in white-collar cases, it is risk-takers, people who understand that rules are flexible and appreciate that executives sometimes have to break them.
"I don't want someone who thinks that they would never do what these guys did," Ms. McEvoy said. "I would try to get the judge to ask questions that would ask people about their own professional responsibilities and how much of a stickler they are for details and rules."
The answer to the question of whether jury consultants really help is anyone's guess. Julie A. Blackman, one of the country's best-known jury consultants, worked both for lawyers defending Ms. Stewart, who was found guilty, and also for Mr. Quattrone's lawyers during his first trial. While that case ended in a hung jury - a result, given one of the alternatives, that defense lawyers see as a victory - neither Ms. Blackman nor any other consultant was hired for Mr. Quattrone's retrial.
"Whether they are any good is a tricky question," said Phoebe C. Ellsworth, a professor of law and psychology at the University of Michigan who has studied jury consultants. "Because you never know how the case would've come out without them."