The Pulse: Race and the all-female-jury strategy

George Zimmerman and his defense team: Attorneys (from left) Mark O'Mara and Don West and jury consultant Robert Hirschhorn (right) at trial in the fatal shooting of Trayvon Martin. "Women are great listeners," Hirschhorn said. "Men are just a different kind of personality type."
George Zimmerman and his defense team: Attorneys (from left) Mark O'Mara and Don West and jury consultant Robert Hirschhorn (right) at trial in the fatal shooting of Trayvon Martin. "Women are great listeners," Hirschhorn said. "Men are just a different kind of personality type." (JOE BURBANK / Orlando Sentinel)
Posted: July 28, 2013

The O.J. 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.

Last week, a Washington Post/ABC survey reported that 86 percent of African Americans disapproved of the not-guilty verdict, vs. 31 percent of whites. But dig deeper into those numbers and a pattern emerges - one not so surprising to the jury consultant who helped the Zimmerman defense "deselect" the jury.

While among all adults 41 percent approve and 41 percent disapprove, men are more likely to approve of the verdict, 47 percent, vs. 33 percent who do not. Women are more inclined to be disapproving of the verdict (48 percent vs. 36 percent). But when women are separated by race, those numbers flip - 45 percent of white women approve vs. 37 percent 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 percent vs. 34 percent - 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 defense. And ultimately, the jury consisted of six women, none of whom was African American.

When the jury was first seated, famed defense lawyer Mark Geragos told me that it was a great defense panel and that the case would end in acquittal. And now, having spoken to the jury consultant used by the defense, I'm convinced the Zimmerman team outmaneuvered 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 week, 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. There was no money for those things.

He calls the process "de-selection" because what happens is that each side gets to remove certain jurors, and the first six who haven't been removed compose the jury.

So whom didn't the defense want?

"I didn't want people who were afraid of guns or disliked guns or had a bad experience with guns," he told me. "I didn't want people that had already made up their mind. I needed people that could withhold judgment until they heard everything in this case, and the third most important criteria, and this kind of leads to the historic all-female jury, is I really wanted people that were great at being listeners, what I call good listeners or active listeners. That was my third criteria for this jury.

"Women are great listeners," he added. "Men are just a different kind of personality type."

Hirschhorn said the defense believed that the objective evidence would show that Zimmerman was being attacked and beaten up and that the combination of the physical and eyewitness evidence would prove that.

"Who would be more concerned about being beaten up? Would it be a man or a woman?" Hirschhorn asked. "And that's what I meant by jurors would have more understanding of the position that George found himself in. Because, remember, in a self-defense case you have to look at what a reasonable person in the defendant's shoes, in George Zimmerman's shoes, would do. So you've got to think about who's the kind of person that would be afraid of being beaten up, and that's what led me to the conclusion that women, if I had a choice, women would be ideal for this particular case."

This process played itself out during peremptory challenges, where each side gets to eliminate potential jurors for any reason except race. Each side had 10 such challenges. Hirschhorn said that where normally every peremptory challenge is used, in this case, the defense used only three. Meanwhile, according to Hirschhorn, the state (prosecution) used six or seven of its strikes on white females (and one more on an African American male). Two of the state strikes used for white women were ultimately disallowed by the judge, causing those two women to be put back in the jury pool. This suggests the prosecution understood the defense strategy of seeking white female jurors but ultimately could not stop it.

As Hirschhorn said, "I really liked women in this case because I thought they were better listeners and can withhold judgment."


Michael Smerconish can be heard from 9 a.m. to noon on Sirius XM's POTUS Channel 124.

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