Christensen trial | Both sides utilizing consultants to try to stack jury

Christensen trial | Both sides utilizing consultants to try to stack jury

PEORIA — After a week of qualifying potential jurors, prosecutors and attorneys for accused kidnapper and killer Brendt Christensen will meet Tuesday to narrow the pool of about 70 until they reach a final 12 and six alternates.

They'll do so with the help of jury consultants, which are rarely used in trials around here.

"I've been a judge 31 years and never had a jury consultant," Judge Michael McCuskey said of cases he's presided over. "We've had national trials here over the years, had some high-level trials. ... It just isn't usual. Of course, this isn't a usual case."

Despite their rarity in central Illinois, jury consultants are becoming more common in capital cases, said James Acker, a professor at the University at Albany's School of Criminal Justice who's written multiple books about the death penalty.

"In the current state of death penalty jurisprudence, the lawyering has advanced to a stage where it would be unusual not to involve assistance in trying to select a jury in a death penalty case," Acker said. "Once upon a time, the defense in capital cases was at a relatively undeveloped stage. Not a lot of experience, not a lot of resources available.

"But over time, in the last several years, there's been an increasing expertise in the defense bar in capital cases, particularly as fewer and fewer capital prosecutions are brought."

John Gilleland, a jury consultant for 31 years now with DecisionQuest in Chicago, said his line of work started in the 1970s and "became more and more commonplace in the mid-'80s and forward."

20 strikes per side in first round of selections

In the case of Christensen, who was charged with kidnapping resulting in the death of Yingying Zhang two years ago today, each side used a consultant last week during the lengthy questioning of jurors.

And when the pre-approved pool of about 70 potential jurors is narrowed Tuesday, the consultants will likely be advising attorneys on which ones to strike.

Jurors will be considered one by one, with the parties alternating who will go first in using their "peremptory" strikes.

Each side gets 20 of these strikes, which are made without giving a reason.

If neither side strikes a juror, that person will sit on the jury. The first 12 not stricken by either side will make up the jury that will decide Christensen's fate.

The same process will play out all over again to choose six alternates, who will sit in on the trial just like the others and may be used if a regular juror has to be removed.

Consultants brought in from Texas, New York

The use of jury consultants didn't come up until the final pretrial conference two weeks ago, when Assistant Federal Defender Elisabeth Pollock asked to be allowed to use one.

Assistant U.S. Attorney Eugene Miller didn't object, but said that if the defense had a consultant, the prosecution would like one as well.

U.S. District Judge Jim Shadid agreed to this.

As potential jurors were questioned last week, the defense was assisted by Julie Howe, a New York-based social psychologist. The prosecutors turned to Dan Jacks, a Houston-based jury consultant with Edge Litigation Consulting.

Pollock and a spokeswoman for the U.S. Attorney's office declined to comment, citing the ongoing trial.

But Gilleland, a former co-worker of Jacks', said the consultants are likely scoring each potential juror as they answer questions.

"If there's little doubt the crime was committed, they'll look for people who maybe reluctantly agreed that, 'I guess I could give the death penalty if the facts warranted it,'" Gilleland said. "If it's an auto 'yes, I could do it,' I'd want to believe they're more on the prosecution side.

"But any indication of 'well, it depends on the circumstances' and the more they have to be talked into it, the more they're on the defense side of the ledger."

Reading body language 'a wild goose chase'

While some consultants may keep track of small changes in a potential juror's body language, Gilleland was skeptical that this is useful.

"There's some who claim to be gurus at body language and reading people. ... There's some academic research about facial expressions and what they're thinking and feeling, but this isn't a very controlled environment," Gilleland said. "All that's really a guessing game."

He said some things can be learned from body language.

"Think of any party you've been to, and you think you can see something going on between two people based on how they're standing or how far apart they are," Gilleland said. "But I would argue, that's quite a bit different when you have a complex set of facts, and what does one little micro-burst of expression mean in predicting (their leanings)? That's a wild goose chase."

Stephen Joy, who grew up in Champaign and has been a jury consultant for six years in Chicago, said the same thing.

"It's hard to put much stock in the body language in a way that we're able to see something that everybody else can't," Joy said. "In order to make any sense of that, you have to know the person to begin with. You know when your friend or spouse is feeling one way but acting a different way or possibly being deceptive. It's a lot harder to do that with people you just met 20 minutes ago and hardly have any experience with."

Personality test: Looking for leaders, followers

Both Joy and Gilleland believe there are some behaviors consultants can look for, such as someone not wanting to say something or being too shy.

In a case years ago, Gilleland was helping attorneys who weren't comfortable asking jurors questions.

"I told the prosecutors when they start asking a death-penalty question to stand between the juror and the accused and then turn semi-dramatically, while asking, 'Could you sentence that man to death?' and point at the defendant. The ones who look away are the ones the defense wants," Gilleland said. "There's little tricks, little things going on, that if you sit and watch (a lot of jury selections), you start to pick up on."

Besides simply looking for someone who will decide in your favor, the two sides are also looking at who might emerge as leaders in jury deliberations or who might be persuadable.

"You're trying to get a sense of the personality of the person, whether they're going to be a leader or a follower," Gilleland said. "There's lots and lots of variables."

Most of the death-penalty questions last week were done so in judge's chambers, with potential jurors brought in one by one to a crowded room with Christensen, Shadid, the jury consultants and multiple attorneys.

"All the easier to judge how the prospective juror acts around the accused killer," Gilleland said. "Those are probably the key moments back there, when they're in the same space as the accused."

Strategy sessions likely happening this weekend

Last week, lawyers for each side met with Shadid to discuss who they could agree could be excused for hardships.

Then, after interviewing an individual juror, they could have tried to convince the judge why a person shouldn't serve because of something said that revealed they wouldn't be impartial.

By the end of the week, 69 potential jurors of the 150 heard were pre-qualified.

Eight were approved over objections, Shadid said. He did not elaborate.

This weekend, the lawyers and their consultants are likely discussing which potential jurors to strike and which not to.

"They go through and rank the people that they need to take. There may be an instance where they both think the other side might not like that person either, so they're put on a second tier," Gilleland said.

And as strikes are made, the rankings may change.

"It becomes a back-and-forth game," Joy said. "What kind of people they strike with their first five could be indicative of the rest" they want to strike.

While lawyers can strike anyone without giving a reason, they must be careful not to do so because of a person's race, gender or any other protected status.

"The standard is if one side is showing a pattern of striking all women or all young women or people of a certain race, once a pattern is established, the other side can cry Batson," Gilleland said, referring to the 1986 U.S. Supreme Court decision that established that peremptory strikes can't be used discriminatingly.

Consultants' work 'as much art as it is science'

The process, consultants say, isn't much like how it's often depicted in the movies (such as the Gene Hackman-starring "Runaway Jury") or on TV (the CBS drama "Bull").

Bull "breaks the law in almost every show," Gilleland said. "He wears a wire into court, puts an earpiece in, sometimes a camera getting shots of jurors. ... He would end up in jail if he did that in any courtroom."

Much of what consultants do is behind-the-scenes work, Joy and Gilleland say.

"A lot of the most important stuff is done at the very beginning, before you even get to court. They're going to help write jury questionnaires that will be given to prospective jurors, in order to figure out who has a bias at the outset," Joy said. "We also help with the attorneys in crafting the questions they ask of the jury. ... We help them devise questions that will best elicit bias, in a way that will get rid of people who are going to be harmful to our side."

They also conduct mock trials, taking perhaps a day or more to run the case by fake jurors.

"We use those to find out what juror attitudes are, to find out how people are likely to react to different issues in the case, in order to inform the trial strategy later on and to build profiles of who we think is going to be a helpful juror for our side and figure out common life experiences," Joy said.

Gilleland said he uses mock trials to learn "what to focus in on, what the psychological anchors of the case are, and identify three or four points on which the case turns. Then the goal is to try to get people on the panel who would be responsive to those points. It's as much art as it is science."

Jury consultants also conduct polls in the area where the trial will be held, to build a profile of the type of juror to look for or avoid.

Polls are also used to build a case for moving the trial.

Christensen's lawyers hired a different trial consultant last year to conduct a poll in an effort to get the trial moved from Urbana to Peoria.

The survey showed that 77 percent of respondents in the Urbana division were familiar with the case, compared to 59 percent in the Peoria division.

Shadid ultimately moved the trial to Peoria, but for logistical reasons, not pretrial publicity. The judge is based in Peoria and took over after Urbana-based Colin Bruce was recused from criminal cases.

Federal cases since '88: 64% life, 36% death

While Acker said the use of jury consultants in particular hasn't been studied much, studies have shown that jury selection is critically important in capital cases, as death sentences must be unanimously reached.

"The few studies that appear to examine jury selection suggest, as we would hope, for the most part, it's the evidence and not the individual jurors that drive verdicts," Acker said. "However, in certain kinds of cases, where the decisions are not so fact-dependent ... but moral judgments — such as: Does this person deserve to die or does he deserve a life sentence? — in those kinds of decisions, the individuals that sit and make the judgment do import more of themselves into the judgment than a strict fact-based question."

In federal capital cases, a sentence of death is hardly a given.

In the 236 federal capital cases since 1988, juries imposed life sentences in 64 percent and death in 36 percent, according to the Federal Death Penalty Resource Counsel Project.

Gilleland said he's seen how seriously jurors take this decision.

Early on, "I came to realize the gravity of the situation," he said. "I remember we picked a jury where nobody had really asked many questions of an older woman. Once she found out she was on the jury, she broke down crying and said, 'I can't sit in judgment of another man's wife.'

"That was partly tied to her just losing her husband, but it shows that not only do jury consultants take it seriously, because of the immenseness of the decision, but I think jurors take it very seriously."