Alan J. Cohen, Ph.D. LLC
Jury Insights
Mock Trials Help Lawyers Prepare for the Real Thing
SEATTLE POST-INTELLIGENCER
Tuesday, October 28, 2003
By TRACY JOHNSON
SEATTLE POST-INTELLIGENCER REPORTER
He tries to predict what can be wholly unpredictable: Where a jury will lay blame for a tragedy. Whether the penalty should be thousands or even millions of dollars.
What it will take to spare a killer's life.
Seattle jury consultant Alan Cohen has worked on more than 300 court cases, including some of the region's biggest, from the state's multibillion-dollar tobacco case to the defense of Gary Ridgway, charged with seven of the notorious Green River slayings.
He's helped with record lawsuits against the state and the defense of so-called Northlake Shipyard shooter Kevin Cruz, who killed two men and wounded two others at the Seattle shipyard in 1999.
"Any big case that I had where someone's life was at stake, he'd be the first phone call I'd make," said attorney Eric Lindell, who defended Cruz and now represents Ridgway.
Cohen is someone many local lawyers rely on. His research using "mock jury" panels can help reveal when a case will be a courtroom winner -- or when it might be best settled quietly before trial.
But his profession is also one of controversy. Some fear too much focus on which jurors will favor one side of a case undermines the fairness of the system. Jury consulting may have gotten a tarnished image in the legal-wrangling surrounding O.J. Simpson's murder trial and could seem downright appalling in the movie "Runaway Jury," where a ruthless jury consultant tries to dig up dirt on potential jurors so he can blackmail them with it.
The farfetched portrayals and off-target public perceptions make Cohen cringe.
"To think of what I do as a manipulation or a spin-doctoring actually distorts the process," he said.
Cohen said jury selection is about asking the right questions -- usually using hypothetical analogies -- to find out how people view the "moral conflict" that he believes is at the center of each case. He tries to dispel the notion that you can make assumptions simply based on someone's gender, background, age or lifestyle.
"Not all single mothers who are well-educated are going to vote the same way," he said. "Those kinds of stereotypes are the most coarse and inelegant way of picking a jury."
Cohen's background isn't in law but psychology. The 54-year-old Brooklyn native earned a doctorate in speech communication science at the University of Washington and spent 15 years as a psychotherapist before taking on trial consulting about 10 years ago.
He offers different services, from exploring mock juries' attitudes about cases to helping the lawyers come up with effective questions for potential jurors. He conducts surveys to gauge whether people have been influenced by pretrial publicity -- often to find out whether moving the trial to another venue would be wise.
Cohen said he couldn't describe the work he's done on pending cases, including Ridgway's.
Defense attorney Roger Hunko credits Cohen for choosing the single juror who voted in March 2000 against executing Mitchell Rupe, twice condemned to die for shooting to death two tellers during an Olympia bank robbery. The 11-1 decision capped an 18-year legal battle that gained widespread attention when Rupe was deemed too obese to hang.
Cohen reviewed Hunko's notes after long days of jury selection and suggested that he try to keep one potential juror -- a man who was active in community service and ministry work -- on the panel.
"Alan thought that he (the man) would find it very difficult to kill someone ... and he was right," Hunko said.
Cohen also helped Hunko prepare for the Pierce County trial of Spokane serial killer Robert Yates Jr., who was sentenced to die last year.
Most of Cohen's work is in civil cases. He set up numerous mock juries to evaluate Washington state's case against the tobacco industry to prepare for the high-stakes 1998 trial. The process showed that jurors might be willing to award the state several billion dollars -- or not, because some thought the state had already gotten plenty of money from cigarette taxes.
"We knew that this wasn't going to be a slam-dunk verdict," Cohen said.
No one will ever know. The case was settled halfway through trial. A $206 billion settlement between 46 states and the country's four biggest cigarette-makers would leave Washington with a share of more than $4 billion.
Tacoma attorney Jack Connelly often uses Cohen to find out how strong his case is, or whether there's any facet of it that he might have overlooked.
"A lot of times, you can get so close to a case, and then realize jurors may have a lot of questions you've never even thought of," said Connelly, who represented the family of Paula Joyce in a record $22.4 million lawsuit. The Tacoma woman was killed when her truck was hit by a felon who was supposed to be under state supervision.
Seattle attorney David Moody also relied on Cohen's insight in cases against the state -- including an approximate $9 million settlement for Linda David, an Everett woman who was held captive by her husband on a filthy sailboat while the state paid him to care for her, and one that ended in a $17.8 million verdict for three developmentally disabled men who were abused in a state-licensed group home in Bremerton.
But other lawyers don't see a point. Criminal prosecutors sometimes complain that jury consultants are just looking for that one person it takes to hang a jury.
Some attorneys believe a capable attorney should be able to detect jurors' biases themselves, or they're skeptical that choosing a jury can be reduced to a science.
"I think the whole dynamic of jury selection is less calculus and more common sense," said King County Deputy Prosecutor Tim Bradshaw, who prosecuted Northlake Shipyard shooter Cruz and death-penalty defendant Dayva Cross, two cases in which Cohen assisted.
Bradshaw doesn't think much of mock juries, either.
"I guess it's akin to political polling," he said. "It might shed some light, but in the end, the evidence will speak for itself."
In the trial of Cruz, defense attorneys wanted to know whether his apparent mental-health problems would persuade a jury to spare him from execution. Cohen's mock-jury research showed it would likely sway a few.
"It was extraordinarily helpful," said defense attorney Lindell. "You just don't know until you try it out in front of a jury."
The real jury was split nearly the same as the mock panel had been, voting 8-4 to give Cruz a life sentence.
But Cohen is the first to acknowledge that what a jury will do can't be forecast with certainty. Attorneys can't always accurately predict what the other side will argue. People sometimes change their stories when they step up to the witness stand.
Judges might not allow certain evidence that the lawyers expected to use.
He's also learned quite a bit about juries over the years.
He said they usually go into each case with reluctance to award money to anyone. They're usually skeptical of all testimony, regardless of whether the witness is a jailhouse snitch or a cop.
He said that even though Washington state law doesn't allow for punitive damages, jurors will often opt for a heftier award if what happened is particularly horrific -- a measure based not on law but emotion.
He also disputed the idea that juries often make outlandish decisions or throw money at undeserving plaintiffs.
"Jurors aren't stupid," Cohen said, "and they recognize when something is frivolous."
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P-I reporter Tracy Johnson can be reached at 206-467-5942 or tracyjohnson@seattlepi.com
© 1998-2003 Seattle Post-Intelligencer
Jury consultant Alan Cohen debriefs two shadow, or mock, jurors about their impressions of how a murder trial is progressing at the King County Courthouse in downtown Seattle.
