OJ Simpson with attorneys Johnnie Cochran, F Lee Bailey and Robert Kardashian as he is found not guilty of the murder of Nicole Brown. Source: News Corp Australia
THERE was shock across the country in 2011 when 25-year-old Orlando mum Casey Anthony was found not guilty of the murder of her 2-year-old daughter, Caylee.
But there was one person who saw it coming.
Richard Gabriel is one of the country's top trial consultants, working with defendants in high-profile cases to help steer the trial toward acquittal.
Having worked on more than a thousand trials, including those of Anthony, O.J. Simpson and Phil Spector, his expertise comes in helping defence teams learn which factors will most strongly influence jurors, and this begins with the all-important jury selection.
In his new book, Acquittal, Mr Gabriel shows how he picked the juries that would say "not guilty."
OJ SIMPSON
OJ Simpson's 1994 mugshot. Source: News Limited
To prepare for jury selection in the murder case against Simpson, Mr Gabriel and his team conducted a slew of research, including polls and mock trials.
What they learned was essential for Simpson's defence, including that many in the potential jury pool wanted Simpson to be not guilty, that many doubted he had time to commit the murders, that only those under 35 placed faith in DNA evidence, and that many in the potential jury pool had "been treated poorly by the police."
As a result of this last finding, the defence filed a motion to ensure that, when jury notices were mailed out, "lower socio-economic areas were fairly represented," as they sought jurors for whom "claims of police profiling and evidence planting were not desperate attempts of a defendant trying to escape conviction," but rather, "a reality of living with the Los Angeles Police Department."
They also uncovered some surprising findings on the attitudes of women.
"Almost half of the divorced or widowed women we spoke to leaned toward acquittal," he writes. "Nicole Brown Simpson's history of 911 calls and domestic abuse did not impress them as a motive for murder."
Simpson was acquitted of the murder of his wife Nicole Brown. Source: AP
Delving deeper, Mr Gabriel learned that "some who had been in troubled relationships shared that they themselves had contributed to the volatility ... and the stronger women were proud to claim they gave as much as they got."
Given that the prosecution would be hoping to fill the jury with women, assuming they would be sympathetic toward Nicole, this was crucial.
"We learned that we did not have to be overly concerned with strong women who had been in physically combative relationships," he writes. "This provided a big strategic advantage by allowing us to keep jurors that the prosecution would also want, gambling that our research was better than their intuition."
A questionnaire was sent to prospective jurors, including 50 pages asking for their perspectives on anything that could come into play during the trial, and a one-page hardship questionnaire. Since the trial was expected to last six months, many ideal prosecution jurors could not serve.
"Many higher-income, conservative jurors who were more reliant on law enforcement and less willing to believe in police tampering or misconduct did not want to serve on this long a trial," he writes.
Simpson ran afoul of the law again in a 2007 robbery case. Source: AP
This left, in large part, employees of the government and other large entities whose employers would pay for their jury time and who, being familiar with mind-numbing and inefficient bureaucracies, "were more receptive to the defence themes of police error and misconduct."
In addition to deciding what type of individual jurors they sought, they also had to strategise about the jury as a whole.
"In a normal criminal case, defence lawyers know the deck is typically stacked against them with both evidence and juror attitudes. As a result, they sometimes look for just one or two contrarian or loner jurors to push for an acquittal or to hang the verdict," he writes.
"However, in this case, it was clear that we needed jurors who would be able to manage the pressures of a long trial, work together and reach an acquittal consensus."
To help identify these jurors, a pollster "developed a statistical model," using the poll responses from earlier, to determine which prospective jurors were likely to rule in their favour and which were not.
During jury selection, as the prosecution predictably struck African American jurors from consideration, the defence used their research to select a jury of which three-quarters "had negative experiences with law enforcement."
This was the jury that ultimately delivered Simpson's acquittal.
PHIL SPECTOR
Phil Spector was accused of killing actor Lana Clarkson. Source: News Limited
Phil Spector's conviction for the 2003 murder of actor Lana Clarkson seemed like a sure thing to many. Just after Clarkson was shot to death in Spector's home, he walked outside with the gun in his hand and reportedly said, "I think I killed somebody." Add to that his history with women — five, over the years, claimed that Spector pulled guns on them — and the case looked open and shut.
But the forensics made conviction more challenging than it appeared. Clarkson's death was initially ruled accidental and was only labelled a murder more than seven months later. Plus, for a shooting that was supposedly at close range, Spector had very little blood on him.
Spector cycled through several prominent attorneys until settling on famed John Gotti lawyer Bruce Cutler, who planned to "re-establish Spector's credibility, speaking about Spector's 'genius' and his 'talent.' "
Mr Gabriel strongly opposed this strategy, believing the defence should focus on the forensic evidence.
To help convince Spector and his team, Mr Gabriel had a graphic artist create an animation of what the blood splatter should have looked like, and how that discrepancy made a strong case for focusing on the science instead of Spector's legacy.
Mr Gabriel pointed out that trying to refute Spector's sketchy history would keep the focus in the prosecution's wheelhouse. The defence's job, in focusing on the science, would be to completely refocus that narrative.
Spector understood it in part, and Mr Cutler remained unconvinced, so Mr Gabriel assembled a focus group to test the strength of the evidence.
Spector's mugshot. Source: News Limited
"While mock trials are more like full-blown dress rehearsals," writes Mr Gabriel, "focus groups are more like conversations that allow you to dig into the jury's thinking a little deeper."
They did two focus groups: one using Mr Cutler's strategy, which focused on Spector's lack of motive and questioned the credibility of his other accusers; and one using Mr Gabriel's, which sought to "actively disprove that Spector was holding the gun, showing that Clarkson was holding the gun, and evidence that indicated Clarkson may have been suicidal."
While both groups "raised serious questions about the evidence on both sides," the group hearing Mr Cutler's strategy leaned toward conviction; the other, toward acquittal. That said, both groups ended with hung juries, a great sign for the defence.
"More importantly," Mr Gabriel writes, "some of the jurors latched onto the forensic evidence as their reasonable-doubt anchor."
During jury selection, lawyers normally strike "strong jurors that you think will go against you," but Mr Gabriel saw a different need for this case.
"I knew we needed a strong, sceptical, and very independent jury. Not sheep," Gabriel writes. "Defence lawyers, especially in tough fact cases, are also looking for outlier jurors, lone wolves who might split or hang the jury and take a few jurors with them."
Lana Clarkson was found dead in Phil Spector's Californian home. Source: News Limited
At one point during jury selection, the pool included "three engineers; a vice president of marketing for New Line Cinema; and an NBC producer who had covered the O.J. Simpson and Michael Jackson cases, and even the Spector case early on. These were traditionally conservative, pro-prosecution jurors. But we were not in a traditional case."
Spector's other lawyers wanted to strike these people, but Mr Gabriel argued otherwise, making the case that a smart jury would understand their evidence and not be taken in by a charismatic prosecutor.
He also found it important that one of the engineer jurors had friends who had been involved in accidental shootings and two co-workers who had committed suicide.
Spector's first trial resulted in a hung jury but he was convicted in a retrial. Source: Supplied
"I explained that, while risky, you want jurors who have had tough and even tragic life experiences in defence cases," he writes. "They understand that sometimes bad things happen to good people. Jurors who are sheltered and have never had a tragedy are more reliant on the police and prosecutors to keep them safe, taking them at their word."
The defence stunned the prosecution by accepting this jury.
For opening arguments, Mr Gabriel developed the phrase, "Is it story or is it science?" to help the attorneys focus the jury on their narrative. With the defence focused on the science, the trial ended in a hung jury.
Spector's victory, though, was short-lived. Prosecutors retried him a year later, and with the defence's strategy now laid bare, achieved a guilty verdict.
CASEY ANTHONY
If high-profile trials are partially fought and won in the media, the Casey Anthony case might as well have begun with the defendant strapped into the electric chair.
Anthony, the young mum who showed shocking indifference at her supposedly missing daughter, repulsed the nation as few others have.
Casey Anthony drew the anger of the American public. Source: News Limited
Mr Gabriel believed that "not only would it be futile to try to turn the tide, but that we may be able to harness the hysteria and use it to our advantage," hoping that the sheer volume of tabloid information would make it harder for a jury to tell what was real.
That said, Mr Gabriel underestimated the public's level of hatred toward Anthony.
"I have never run across a stronger or more palpable anger than I encountered in this case," he writes. "There is frustration anger and there is betrayal anger. This was an anger born of deep hurt. It was personal."
Mr Gabriel recommended that the defence file a motion to have the entire case dismissed, as "Casey's due process rights had been so compromised that she could not get a fair trial." He knew this wouldn't happen, but hoped it would prod the judge to tighten the rules for media coverage. That effort failed.
Next, they filed a motion to change the venue, as many in Anthony's hometown of Orlando had not only been exposed to the constant media coverage, but participated in the initial search for Anthony's daughter Caylee.
Casey Anthony was found not guilty of killing her two-year old daughter, Caylee. Source: AP
It was ruled that the case would remain in Orlando, but a jury from an undisclosed Florida city would be empaneled and sent there for the duration of the trial.
Mr Gabriel arranged for a mock jury — paid for by CBS, which wanted to feature it on 48 Hours — that helped him understand which aspects of the prosecution's case were weakest, including their lack of DNA evidence and questions about the science of the air sampling they planned to use to prove that Anthony had kept her daughter's body in the trunk of her car.
At the beginning, all 12 mock jurors thought Anthony was guilty. By the end, only three said they would convict her of first-degree murder. Asked for their version of the crime, most believed, after being presented with the likely evidence for both sides, that Caylee Anthony died of an accidental drowning and that the cover-up that followed had "snowballed out of control" due to a bizarre family dynamic.
Richard Gabriel argued the defence strategy must question the forensics of the prosecution's case. Source: AP
For the real jury, then, the defence sought people similar to in the Spector case — "smart, sceptical and independent jurors," and "more than one, because we would need several if we got to the death-penalty phase."
While much of the nation watched in stunned fury as Anthony was found not guilty on all charges expect for lying to the police, Mr Gabriel notes that the jury's first vote on the most serious charges was 10-2 — "almost the same as our focus group in Orlando."
This story originally appeared on The New York Post.
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