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Michael Smerconish: Race and the all-female-jury strategy in America
August 06, 2013
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The OJ Simpson criminal prosecution was doomed from the moment the trial was moved from Santa Monica to downtown Los Angeles, ensuring that the jury looked nothing like the two victims, legal pundits agree. Might the outcome of the George Zimmerman trial have been similarly predetermined — not because of race, but because of gender?

That there is racial division in how people regard the Zimmerman verdict is evident, both anecdotally and in the data. Thousands of mostly African Americans have marched in protest since the not-guilty verdict, and now polling results evidence the division. Recently, a Washington Post/ABC survey reported that 86 per cent of African Americans disapproved of the not-guilty verdict, vs. 31 per cent of whites.

But dig deeper into those numbers and a pattern emerges — one not so surprising to the jury consultant who helped the Zimmerman defence “deselect” the jury. While among all adults 41 per cent approve and 41 per cent disapprove, men are more likely to approve of the verdict, 47 per cent, vs. 33 per cent who do not. Women are more inclined to be disapproving of the verdict (48 per cent vs. 36 percent).

But when women are separated by race, those numbers flip — 45 per cent of white women approve vs. 37 per cent who disapprove.

A Pew Research Poll released last week had a similar finding — that while whites and blacks divided sharply on the verdict, and where women are less satisfied than men with the outcome, more white women are satisfied with the verdict than dissatisfied (44 per cent vs. 34 per cent — very close to the margin determined by ABC/Washington Post).

Here’s the point: Support of African-Americans for the prosecution was to be expected, and the inclination of white men to support Zimmerman no surprise, but white females were a potential affinity group for the defence. And ultimately, the jury consisted of six women, none of whom was African-American.

When the jury was first seated, famed defence lawyer Mark Geragos told me that it was a great defence panel and that the case would end in acquittal. And now, having spoken to the jury consultant used by the defence, I’m convinced the Zimmerman team outmanoeuvered the prosecution in the selection process to bring about that result.

Robert B. Hirschhorn was recruited by Don West to bring his three decades’ experience and street smarts to the jury-selection process. Hirschhorn has worked in countless civil and criminal cases, including the prosecution of William Kennedy Smith and Kenneth Lay.

Last month, Hirschhorn told me his work included “a little bit of this and a little bit of that,” including “commonsense, instinct, intuitive sense, reading body language — all of those go into the formula and mix of deciding what kind of jurors we want or don’t want on our jury.”

He told me this was the first time in his career that in a high-profile case he didn’t do focus groups, a mock trial, or polling.


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