SAN DIEGO — As he prepared to defend a 19-year-old client facing retrial on charges of gang rape, Orange County attorney Joseph Cavallo took a step that some legal experts are calling unusual at best - and at worst, potentially harmful to the entire trial-by-jury system.
Mr. Cavallo announced he had hired as consultants members of a jury that had heard the same case last year but had not been able to reach a verdict.
The county prosecutor in the case, Tony Rackauckas, calls the action "outrageous." His concern: Jurors sitting on the second trial might conclude that they could be worth hiring too - if they refuse to convict. "He's sending a message to the second jury that if they go the right way, they can get on the payroll, too."
Nonsense, insists Cavallo. The former jurors are helping him prepare to retry the case by telling him how they understood the case - and their reactions to it - during the first trial. They are jury consultants of a sort, the defense lawyer says, working alongside a more traditional team of professional jury consultants.
"Their input has been beyond expectations in terms of each phase of the trial," Cavallo says. " 'How did you see the evidence, the lawyers? The witnesses? The prosecutors?' That's what they're telling us."
Juror behavior has been making headlines of late. From the juror who was alleged to have gestured to the defense during last year's Tyco trial, to the juror who was said to have lied about his past in the Martha Stewart case, to the jurors who were dismissed during the Scott Peterson trial for various forms of misconduct, they've played high-profile roles in prominent cases.
But Cavallo's move, which paves the way for jurors to gain financially through service as a consultant on a criminal retrial, is said to be without precedent. Jury consultants, including Tom Bernthal of Jury Insight in Los Angeles, say they've hired former jurors from civil trials to probe into how they reached their verdicts. But legal experts have never heard of jurors in a criminal trial being used in such a fashion.
"I've never heard of that, not once," says Prof. Nancy Marder, who specializes in jury research at the Chicago-Kent College of Law. "It violates the core idea of jurors, that they are dispassionate, un-invested participants. That's unseemly and compromises the integrity of the court system."
"I don't see anything unethical about hiring jury consultants," says Jack King, spokesman for the National Association of Criminal Defense Lawyers in Washington, D.C. People who work in the field come from many different backgrounds, and there is no set training for such consultants, he says.
For Orange County's Mr. Rackauckas, who has vowed to win convictions, the hiring of jurors sends a dangerous message to prospective jurors for the second trial. "The point, and they publicized it, is if you voted the right way you get paid," he says.
Jury selection for the retrial began last week. The case, involving allegations of 17 felonies, is already viewed as sordid and disturbing. Gregory Haidl, Kyle Nachreiner, and Keith Spann are charged with sexual assault of a 16-year-old who police and prosecutors say was unconscious while the youths videotaped themselves having sex with her.
The defense has claimed that she was faking unconsciousness to make a pornographic film and that she consented to the acts the three men filmed.
Prosecutors say they believe that Mr. Haidl's father is paying for attorneys for the other two defendants to keep them from accepting plea bargains. If convicted on the 17 felony charges, the three defendants face a maximum of 55 years in prison.
"They've spent an unbelievable amount of money on the defense, hiring jury consultants, top defense lawyers, bringing in a 50-inch plasma television, medical experts, hiring a publicist to smear the victim, and now, offering to buy the jury," says Rackauckas.
Defense attorneys - at least nine of whom have worked on the gang rape case - won't say who is paying their fees, estimated at close to $1 million.
Despite the hung jury after the first trial, Rackauckas and deputy district attorneys Dan Hess and Chuck Middleton decided to retry the case.
"Every woman has the right to decide who to have sex with. She has the right to consent," says Rackauckas. "Being unconscious makes that impossible, and we will get convictions that show people agree with that. If we didn't see this through, we'd be turning our backs on women who depend on us to keep that clear and true."
Cavallo, who has hired jury consultant Jo-Ellan Dimitrius - best known for her advice about the jury during the O.J. Simpson trial - to work with the nine former jurors he has retained, said working with the jurors has paid off in more ways than learning what they thought of the evidence.
"One juror pointed out a piece of evidence all the lawyers missed, us and the prosecutors, that will be absolutely critical to our defense," he says. "It's been very worthwhile and informative to work with them."