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Monday, Apr 21, 2014
Commentary

Race and the all-female jury strategy


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The O.J. Simpson criminal prosecution was doomed from the moment the trial was moved from Santa Monica to downtown Los Angeles, ensuring the jury looked nothing like the two victims, legal pundits agree. Might the outcome of the George Zimmerman trial have been similarly predetermined - not because of race, but because of gender?

That there is racial division in how people regard the Zimmerman verdict is evident, both anecdotally and in the data. Thousands of mostly African-Americans have marched in protest since the not-guilty verdict, and now polling results evidence the division. Last week, a Washington Post/ABC survey reported that 86 percent of African-Americans disapproved of the not-guilty verdict, versus 31 percent of whites.

But dig deeper into those numbers and a pattern emerges - one not so surprising to the jury consultant who helped the Zimmerman defense "de-select" the jury. Although among all adults 41 percent approve and 41 percent disapprove, men are more likely to approve of the verdict, 47 percent, versus 33 percent who do not. Women are more inclined to be disapproving of the verdict (48 percent to 36 percent).

But when women are separated by race, those numbers flip - 45 percent of white women approve vs. 37 percent who disapprove.

A Pew Research Poll released last week had a similar finding - that while whites and blacks divided sharply on the verdict, and where women are less satisfied than men with the outcome, more white women are satisfied with the verdict than dissatisfied (44 percent versus 34 percent).

Here's the point: Support of African-Americans for the prosecution was to be expected, and the inclination of white men to support Zimmerman no surprise, but white females were a potential affinity group for the defense. And ultimately, the jury consisted of six women, none of whom was African-American.

Having spoken to the jury consultant used by the defense, I'm convinced the Zimmerman team outmaneuvered the prosecution in the jury selection process to bring about the acquittal.

Robert B. Hirschhorn was recruited by Don West to bring his three decades of experience and street smarts to the jury-selection process. Hirschhorn has worked in countless civil and criminal cases, including the prosecution of William Kennedy Smith and Kenneth Lay.

Last week, Hirschhorn told me this was the first time in his career that in a high-profile case he didn't do focus groups, a mock trial, or polling. There was no money for those things. He calls the process "de-selection" because what happens is that each side gets to remove certain jurors, and the first six who haven't been removed compose the jury.

"I didn't want people who were afraid of guns or disliked guns or had a bad experience with guns," he told me. "I didn't want people that had already made up their mind. I needed people that could withhold judgment until they heard everything in this case, and the third most important criteria, and this kind of leads to the historic all-female jury, is I really wanted people that were great at being listeners, what I call good listeners or active listeners. That was my third criteria for this jury.

"Women are great listeners," he added. "Men are just a different kind of personality type."

Hirschhorn said the defense believed that the objective evidence would show Zimmerman was being attacked and beaten up and that the combination of the physical and eyewitness evidence would prove that.

"Who would be more concerned about being beaten up? Would it be a man or a woman?" Hirschhorn asked. "And that's what I meant by jurors would have more understanding of the position that George found himself in. Because, remember, in a self-defense case you have to look at what a reasonable person in the defendant's shoes, in George Zimmerman's shoes, would do. So you've got to think about who's the kind of person that would be afraid of being beaten up, and that's what led me to the conclusion that women, if I had a choice, women would be ideal for this particular case."

This process played itself out during peremptory challenges, where each side gets to eliminate potential jurors for any reason except race. Each side had 10 such challenges. Hirschhorn said that where normally every peremptory challenge is used, in this case, the defense used only three. Meanwhile, according to Hirschhorn, the state used six or seven of its strikes on white females (and one more on an African-American male). Two of the state strikes used for white women were ultimately disallowed by the judge, causing those two women to be put back in the jury pool. This suggests the prosecution understood the defense strategy of seeking white female jurors but ultimately could not stop it.

Michael Smerconish writes for The Philadelphia Inquirer.

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