Varinsky or Varoutsky?

Governor J. Fife Symington III's criminal case may be decided as much by the type of cars and window shades jurors prefer as by the labyrinth of financial statements and bank memos that the jurors will see.

Symington's defense team has gone to great lengths and expense to develop a detailed analysis of the psyche of each of the 12 jurors and five alternates that will decide the governor's fate.

All jurors have submitted written answers to more than 140 questions that probe deeply into their personal lives, political views, family relationships, job history, financial background and media preferences.

The questionnaire was prepared by prosecutors and defense lawyers in the case and was given to about 200 prospective jurors. The answers to the questions provide jury consultants for both sides an extensive database from which to develop psychological profiles of jurors.

Analyzing the data for Symington's defense was Howard Varinsky, one of the nation's top jury consultants. Varinsky, who has consulted on such high-profile cases as the Oklahoma City bombing, likes to drive by the homes of prospective jurors in search of clues about their personalities.

"A pickup truck in the driveway with a gun rack might tell me I have a redneck juror, whereas a Volvo might tell me I got a liberal juror," Varinsky told the Sacramento Bee during the O.J. Simpson case.

Varinsky also likes to see how jurors cover the windows in their homes.
"You can learn a lot by doing it, just by looking at window coverings," he said in a 1995 newspaper interview. "If people have old-fashioned Venetian blinds or old lace curtains, you know that that person's going to think much more traditionally than if somebody has new Levolors or something to that effect."

Prosecutors also have a jury consultant assisting them in the case. The government has declined to identify the consultant. Jo-Ellan Dimitrius, a Pasadena, California-based consultant with Trial Logistics Inc., tells New Times her firm has worked on the Symington case, but would not specify whether it was for the prosecution or the defense.

Varinsky, who declined an interview request last week, sat immediately behind the governor during the jury-selection process that concluded on May 15. He worked closely with Symington's lawyers during the questioning of prospective jurors that consisted of a 39-person pool from which the final nine men and eight women were selected.

Varinsky also played a crucial role in the final selection of the jury. After the pool of 39 prospective jurors was selected, the defense had the opportunity to reject up to 12 without giving a reason. The prosecution was allowed to eliminate nine from the pool.

The "deselection" process was done privately; court records do not indicate which prospective jurors were booted off by whom.

Joseph Rice, director of the Jury Research Institute in Alamo, California, reviewed the questionnaire that the Symington jury completed, and says Varinsky obtained a wealth of information.

"He's clearly going to have an extensive view of each juror," Rice says.
Questionnaires of jurors selected for the trial and reviewed by New Times reveal several notable trends including:

* None of the jurors on the trial signed a 1996 petition to recall Symington from office.

* Six of the jurors reported they don't read newspapers and most of the rest said they only skim local daily newspapers. Only one juror, a female, stated that she read several sections of the newspaper including editorial pages.

* The jury was nearly unanimous in "agreeing" or "strongly agreeing" that "banks are obligated to thoroughly investigate a loan applicant's background before granting a loan." Only one juror expressed no opinion on the question.

* Seven of the jurors live in west Phoenix, three in northeast Phoenix, while the remaining jurors live in Fountain Hills, Scottsdale, Chandler, Tempe and Yuma.

The questionnaire information is not only valuable during jury selection, it also provides clues into how jurors will react to evidence and testimony in the trial, Rice says. Such information helps attorneys decide which witnesses and evidence should be presented--or emphasized--and which should be downplayed.

"It really gives you good insight into who they are, what kind of decisions they have made in their lives, what their values are," Rice says.

Symington is just the latest in a series of prominent cases for Varinsky. Last month, he worked for federal prosecutors during jury selection in the trial of accused Oklahoma City bomber Timothy McVeigh.

But usually Varinsky is hired by the defense, and for good reason. He's assisted in the cases of several high-profile defendants including Dr. Jack Kevorkian, New York subway shooter Bernhard Goetz and former Arizona governor Evan Mecham, all of whom were acquitted by juries.

His advice doesn't come cheaply. Rice and other consultants say daily expenses can easily exceed $1,000. In complex cases such as Symington's, pretrial research and focus groups can cost more than $100,000.

While Varinsky declined to be interviewed, a 1992 article he wrote for the legal journal The Recorder details the importance he places on mock trials and focus groups, particularly in high-profile cases such as Symington's.

"Focus groups are a means to 'test-drive' case strategy and preparation, and provide an analysis of how different types of jurors react to the specific facts of an individual case," Varinsky wrote.

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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John Dougherty
Contact: John Dougherty