Jury Selection at Heart of the Trial

Oklahoma bombing case midway into choosing jurors.

In the minds of many Americans, the trial of Oklahoma City bombing suspect Timothy McVeigh won't get fully under way until 12 people are chosen to sit in the jury box behind a beige screen in this Denver courtroom.

But as the process of winnowing a pool of 350 potential jurors enters its third week, experts say the contours - even the outcome - of the case are being established now.

As the McVeigh trial shows, at this stage lawyers probe for biases and try to plant ideas and images in the minds of prospective jurors. Research shows too that verdicts are often strongly influenced as much by the evidence as by who people are and how they view the world. As such, the jury selection process is seen as one of the most important strategic phases of a trial.

"A lot of trial lawyers believe it's very important to get their version of the facts to the jurors as soon as possible," says Bill Pizzi, a University of Colorado law professor. "In fact, many believe it's all over once the jury is picked."

Most prospective jurors already have strong predilections by the time they appear for questioning, and then they tend to form lasting opinions based on the first information they receive, says Cathlin Donnell, a legal consultant and former United States prosecutor. "You've got to get your licks in early if you're going to have an influence," Ms. Donnell says. "You have to start selling your arguments as soon as you begin questioning potential jurors."

That view is not lost on the prosecution and defense lawyers in the trial of Mr. McVeigh, the ex-soldier charged with murder and conspiracy in the April 19, 1995 bombing that killed 168 people. As they interview jury candidates in the courtroom of US District Judge Richard Matsch, they are calculating their words, gestures, and even facial expressions.

When potential jurors are introduced in the courtroom, government lawyers smile broadly as they say hello. McVeigh, often garbed in pressed khaki pants and an open-collar dress shirt, stands and bows slightly as he offers a cordial greeting.

"You don't get a second chance to make a first impression," observes Andrew Cohen, a Denver trial lawyer. And any candidate may become one of the the 12 jurors ultimately charged with deciding McVeigh's fate - including whether he lives or dies. "If a juror remembers a kind prosecutor, that might help the government's case.... And McVeigh obviously has been coached. He's really trying to make a favorable impression," says Mr. Cohen.

"When selecting a jury, you first want to establish a rapport, a bond," Ms. Donnell says. "But you're also trying to set some wheels in motion in their mind."

Since this is a capital-punishment case, jurors are probed extensively about their views on the death penalty. There's also an educational aspect. One potential juror was asked by the government prosecutor if she could "sign a paper sending the defendant to death" if his family was in the courtroom weeping.

Each side is looking for clues to a juror's leanings. For example, one potential juror - a commercial airline pilot - expressed strong reservations about the death penalty. He also revealed that a friend, a fellow pilot, had been killed as a consequence of a terrorist act.

Government prosecutor Lawrence Mackey asked the pilot: "Do you think the death penalty is an appropriate potential deterrent to terrorists?" "Possibly," the man replied.

McVeigh's attorney, Stephen Jones, took a different tack: "Do you agree that in the US, the guilt or innocence of a defendant is decided in the courtroom, not in the media?" he asked.

Of course, jury selection isn't just about influencing the thinking of jurors - it's about choosing the right mix of people. Thus, seemingly insignificant questions and comments may hold import. Attorneys ask about prospective jurors' hobbies, habits, pets, and favorite books. They are trying to connect with each candidate, but they are also gleaning clues to an individual's nature, jury consultants say. Bumper stickers, for example, reveal strongly held views.

"You want to weed out people with strong opinions," says Robert Hirschhorn, a Galveston, Texas, jury consultant who will assist the defense team of bombing co-defendant Terry Nichols - set to stand trial after McVeigh. In the McVeigh trial, defense and prosecution are using jury consultants.

At times, lawyers' tactics are more backhanded. "If defense lawyers see someone they don't want on the jury, they may try to get them to say something the prosecution won't like," says Cohen. "They try to make them unappealing to the prosecution. There's a lot of 'poker bluffing' that goes on."

Many legal experts - including Donnell - view such behavior, along with an increasing reliance on jury consultants, as a disheartening trend. "Nearly every lawyer now thinks they need a jury consultant. And I think that's sad ... because it's all manipulation," she says.

A "dumbed-down" jury may be an unfortunate consequence of this approach, she says, adding that many consider the O.J. Simpson criminal trial, a case in point. "When it comes down to knocking off anyone with fairly strong opinions about anything, you get to a fairly low common denominator," Donnell says.

Hirschhorn disagrees. "The beauty of the jury system is that 98 times out of 100, the jurors figure it out. They have a collective IQ of 1,000." But first and foremost, he stresses, is an impartial jury. "Jury selection is not important. It is supremely important."

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