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Paying jurors: Savvy trial strategy — or attack on the jury system?

By Diane Curtis

  Riverside attorney Joseph Cavallo
  Riverside attorney Joseph Cavallo is paying jurors from a first, deadlocked trial for their thoughts about the re-trial, a strategy some critics see as a disturbing precedent. PHOTO BY MARK BOSTER, COURTESY LOS ANGELES TIMES

When Riverside attorney Joseph Cavallo heads to the courtroom at the end of this month for the retrial of a young client accused of taking part in a gang rape, he hopes to be armed with the wisdom of the 12 jurors from the deadlocked first trial. Like many lawyers, Cavallo is debriefing the jurors, who leaned heavily toward acquittal. But unlike those other lawyers, he is paying the jurors for their observations, much to the disgust of the prosecution.

Paying jurors amounts to “an outrageous attack on the integrity of the jury system,” Orange County District Attorney Tony Rackauckas told the Orange County Register in July. “This signals to the next jury, if they vote (in favor of the defendant), they can get paid.”

Sour grapes, responded Cavallo. Prosecutors are just frustrated because “they were too lazy” to think of corralling the jurors themselves. Cavallo said he talked to a State Bar attorney who said that paying jurors, however unusual, did not violate any legal code. “Tell me the best focus group,” the defense attorney challenged, “ — the jury that sits through the trial.”

Cavallo is paying the jurors $50 an hour (they each received a $500 retainer in December) to be available before and during the trial, although they won’t be in the courtroom when proceedings begin again on Jan. 31. The defense attorney is relying on the jurors not to offer advice on picking a jury but to give him “a feeling for the lawyers, for the witnesses, for every piece of evidence that was used.” After the initial post-trial meeting, he said, “We’re getting more (information from them) than we thought we’d get.” The questions they’ve answered so far include how they felt about the case and the lawyers and what the lawyers should change. “Many things they considered that we didn’t,” he noted.

Legal experts say they know of few cases in which jurors have been paid. When a Connecticut lawyer tried it a decade ago, the legislature followed up by making such an act a misdemeanor. The idea of hiring the jurors as consultants is not new to Cavallo, either. “It’s not the first time I’ve thought about it, but it’s the first time I’ve been able to do it because we have a father willing to write a check,” he said.

Three 19-year-old Orange County men were and will again be on trial for the alleged gang-rape and assault of a 16-year-old young woman. The boys videotaped the encounter, and it was shown to the jury. Cavallo’s main client is Gregory Haidl, the son of an Orange County assistant sheriff who is also a wealthy businessman. Cavallo has argued that the young woman went to the playroom garage of Haidl’s Corona del Mar home for the purpose of having just the kind of sexual encounter that occurred on a pool table. The prosecution says the woman was unconscious; the defense says she pretended to pass out. After the two-month trial that ended in June, the jury announced it was deadlocked on the 26 counts of rape and assault, leaning heavily for acquittal.

Diane Karpman, a Los Angeles attorney who writes an ethics column for the California Bar Journal, called the strategy “brilliant lawyering that is consistent with defense lawyer duties” to do everything possible to defend their clients. “If defense lawyers can take advantage of some point of law, they should take it,” Karpman said. “You have to remember that when you’re being prosecuted by the state, the state has so much power, and you’re just a mere human being. You have to make the scales a little more equal.”

Plus, by paying the jurors as consultants, Cavallo not only gained the insight of the “best people” to tell him what kind of job he did, Karpman said, but he prevented the prosecution from using the jurors’ expertise on behalf of the state because paid consultants may only confer with one side.

“The idea of preventing the jurors from talking to the prosecution was “a very big part” of his decision, Cavallo acknowledged. “I wouldn’t do it solely for that reason. It’s just an added benefit.”

But some legal scholars see a disturbing precedent that, as the prosecution predicted, could include an inclination for jurors to aim for a mistrial in order to later pocket consulting fees in a new trial.

Richard C. Wydick, a legal ethicist and professor of law at the University of California at Davis

Richard C. Wydick, a legal ethicist and professor of law at the University of California at Davis, called it a “long shot” that juries would intentionally aim for a mistrial, but he said he still doesn’t like the idea of paying them. “It seems to me that it puts a taint on one’s jury service. I think if you’re a citizen and you’ve decided a case and you’ve gone back home, you should not be pestered by lawyers who lost.”

Deborah L. Rhode, a Stanford University law professor who specializes in legal ethics

Deborah L. Rhode, a Stanford University law professor who specializes in legal ethics, also said it’s a distasteful precedent. “Lawyers do certainly talk with jurors after a verdict or a mistrial, and that’s to the good. Getting some insight into trial strategy is useful,” she said. “Paying jurors, though, commercializes the deliberative process in ways I’m not sure are healthy over the long run,” just, she said, as it is unhealthy for jurors to be paid by the media. “There’s the notion that jury service on a big case could be the way station to a lucrative deal. You want jurors to be thinking about jury service, not selling their advice later.”

Chapman University School of Law Professor Jeremy Miller agreed. “So many people do everything in their power not to serve on juries, so one has to worry anyway why someone does,” he said. If there is the possibility of an economic reward at the end of a trial, Miller added, “this is a motivation that makes me believe they’re not going to be fair and impartial.” While he said he believes that defense lawyers should do everything within the law they can to defend their clients, they might accomplish the same thing “with a less invasive mode,” such as by hiring one of the many jury consultants available. “We care about the appearance of impropriety and it really does look bad that you serve on a jury and afterward you get paid so one side can win.”

Shortly after Cavallo announced he was going to hire jurors, then-Assembyman Lou Correa, D-Santa Ana, and Sen. Dick Ackerman, R-Tustin, introduced legislation that would prevent jurors from being paid. The bill died in committee, but Paul Dress, Ackerman’s legislative director, said the senator is “seriously considering” reintroducing the measure.

Cavallo said the legislation is “just politics,” and he’s pretty sure other lawyers would follow suit if they “had the guts” to withstand the ridicule he’s been subjected to that has included being called “slimy” and “unethical.” “Only a handful of lawyers really take the time it takes to cover every single aspect of defending their clients,” he said.

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