Varinsky or Varoutsky?

Renowned trial consultant helped Symington defense decide who would serve on the jury

This information plays a critical role during the jury-selection process, he explained.

"Analysis of focus group data also provides a list of favorable and unfavorable juror traits so intelligent use can be made of peremptory challenges [juror dismissals]," Varinsky writes.

Focus groups are similar to the market-research studies manufacturers and advertisers use to measure consumer reaction before marketing their products, Varinsky explains.

"A group consists of 12 to 14 people who are chosen to approximate a typical jury in a particular trial venue," Varinsky writes. "Panel members complete a questionnaire on their demographics as well as their values and attitudes relating to case issues and problems.

"Both sides of the case are argued to the panel; attorneys observe the panel's deliberations, and then question the panel members extensively as to why they voted as they did, and what could have changed their votes."

The research sometimes leads to surprising conclusions. Varinsky noted that in the William Kennedy Smith date-rape case, the jury appeared to be composed of pro-prosecution people.

"The jurors were all older, educated, religious, conservative and traditional," Varinsky wrote.

But in a date-rape case, Varinsky writes, the victim is also on trial, which means the defense must present evidence that might offend the "stereotypical criminal defense jury" composed of liberals and minorities.

"This is because liberals would be angry about the defense tactic of putting the rape victim on trial, and minorities would not be able to identify with Smith because of the tremendous social distance between them," Varinsky writes.

Instead, Varinsky says Smith's legal defense team did its homework.
"They analyzed their case, hired a jury consultant who did surveys and focus groups, and learned that, in this type of case, the normal stereotypes are reversed. From its analysis, the defense learned that traditional prosecution-oriented jurors tended to view the woman's behavior as promiscuous and had a difficult time envisioning a white professional--Kennedy or not--as a criminal type."

In Symington's trial, both the prosecution and defense used jury consultants. However, it is unknown whether the prosecution conducted extensive research including focus groups prior to developing the questions and reviewing the responses.

If the prosecution didn't do similar dry runs, the defense may have an advantage.

"If the defense is the only side that invested in the research, they may have learned some things about certain questions they have embedded into the questionnaire which the prosecution may not recognize . . . ," Rice says.

Attorneys for both sides in the Symington case said they were satisfied with the makeup of the jury.

"If it's done right, you end up with a fair cross-section of people who are persuadable," says Rice.

But that doesn't necessarily mean they will be attentive.
Last week, a 78-year-old retired postal worker was dismissed after falling asleep and snoring loudly during defense attorney John Dowd's opening argument.

The trial, which is expected to last 12 weeks, is before U.S. District Court Judge Roger Strand.

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