Thursday, January 20, 2022 Jan 20, 2022
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LAW Mind Games

How a Dallas jury expert helps stack the deck for his clients.

LAW Mind Games

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A PAINED EXPRESSION PLAYED across Jim Burgund’s face. Seated in his North Dallas office, eyes locked on the TV before him, Burgund winced as Michael Lobb, a defense psychologist, fumbled a Tarrant County prosecutor’s questions about accused murderer Diane Zamora.

Burgund, 51, a leading national expert in the young science of jury selection, had helped Zamora’s attorney. John Linebar-ger, select the onetime Naval Academy midshipman’s jury, and Burgund believed she stood a fair chance of acquittal.

The former sociology professor also had argued against putting Lobb, who had volunteered his services, on the stand, fearing the Austin-based psychologist lacked experience testifying as an expert witness in high-profile criminal cases. Now Burgund’s worst-case expectations had come to pass.

Pressed for the results of a 500-ques-tion psychological test he administered to the diminutive, doe-eyed defendant, Lobb conceded that Zamora’s responses “demonstrated classic criminal tendencies.”

Burgund tensed as Lobb spoke, realizing instantly that a single phrase had crushed all hope of clearing Zamora in the murder of Mansfield teenager Adrianne Jones.

So damaging was Lobb’s testimony that Linebarger abruptly forewent further questions of him, testimony the defense attorney had hoped would dramatize the manipulative, dominating hold that Za-mora’s troubled nance, David Graham- who had already confessed to firing two point-blank shots into the victim-had over his young client.

Months later, the case continues to trouble Burgund. The jury’s makeup had pleased him. On a scale in which he rates the best a two, mediocre a three, and bad a four, the Zamora jury included 11 twos and a single three.

“1 honestly thought up until Dr. Lobb testified that there were questions in the minds of the jurors,” Burgund says. “In fact, three interviewed by the media admitted they had some real doubt. I think they wanted to find some way to give her a break. But, as one of them pointed out. the testimony about her ’criminal tendencies’ eliminated any real debate that might have been offered during deliberation.”

A pioneer figure in a discipline that only recently has gained widespread acceptance in legal circles, Burgund and a handful of other elite jury selection experts now are familiar presences at virtually every high-profile criminal and civil trial.

“There was a time when the lawyers who hired you would make it clear they didn’t even want the judge to know about you,” he recalls. “Not too many years ago, judges even refused to allow you to sit at the table with the lawyers during jury selection.”

No longer.

Today jury experts are routinely employed by both the defense and prosecution. Top practitioners such as Burgund command fees that range from about $7,500 to help choose a jury to $25,000 for advice at trial. Burgund sits in on strategy sessions and even arranges mock trials designed to test particular lines of questioning.

“Jim tells you that he can’t guarantee you will win with the jury he picks, but he’ll give you one that shouldn’t cause you to lose,’” says Tulsa attorney Gary Richardson, who has engaged Burgund s services in more than a dozen cases. “In a sense, he’s telling you that he’ll provide you with the opportunity to win your case, if you do your job properly.”

Burgund came to his craft by accident. Son of a Brooklyn cop, he migrated to the University of California at Berkeley to do graduate work in sociology and stayed on to teach. “One of my neighbors was a lawyer,” he recalls. “He’d heard that the defense in the Patty Hearst case had sought the help of some university professors in selection of the jury and asked if I would be interested in helping him.”

When the plaintiff was awarded a half-million dollars in the 1981 case, the press came running. “Suddenly, my name was in the Lus Angeles Times, The New York Times, and the Wall Street Journal-and my phone began ringing,” Burgund remembers.

He quickly shelved his teaching career as far more intriguing, and lucrative, opportunities arose. On a trip to Fort Worth to assist in the defense of a police officer charged with incest, Burgund was impressed with the area and decided to make Dallas home base for his burgeoning consultancy, Jury Selections Sciences Inc.

A workaholic, the divorced father of two grown children acknowledges he has few interests outside his work. He says he enjoys travel (but only to his next case) and reading (materials relevant to his assignments).

Burgund is a familiar courtroom presence throughout Texas and the nation. He helped select the jury that acquitted former Dallas school board trustee Dan Peavy of 42 federal kickback charges. He assisted in picking the 12 who found Dallas County Judge George Shepherd not guilty of assaulting an Austin police officer. He also analyzed the jury candidates who ultimately acquitted Dallas City Councilman John Wiley Price of felony assault charges.

In Tulsa, a Burgund jury cut loose a woman accused of making bomb threats. A Las Vegas panel cleared a teenager of homicide charges resulting from a fire-bombing incident. In Philadelphia, Bur-gund found a group who acquitted a reputed mob boss in an organized crime case.

The most celebrated civil trial victory of his career came in 1991 in Waco. Working at Richardson’s side, Burgund helped select the jurors who awarded former McLennan County District Attorney Vic Feazell a record $58 million judgment in his libel suit against Dallas-based Belo Corporation and WFAA-TV.

To be sure, there have been defeats along the way, notably the Zamora case, as well as that of Fort Worth teenager Karen Koslow, who was found guilty of orchestrating her stepmother’s murder.

Plus there are cases Burgund recognizes as just plain impossible to win. One was the prosecution of a Pennsylvania man accused of kidnapping, raping, and torturing young girls.

“The evidence against him was overwhelming,” Burgund recalls, “and the facts of the crime were abhorrent. He’d doused his victims with kerosene and set them on tire while they were still alive. I told his lawyer I wasn’t interested.”

Burgund thinks of a court case as adversarial theater, in which his function is to cast a sympathetic audience-the jury. “If lawyers and judges are honest, they will tell you that trials are, in fact, exercises in manipulation from the get-go,” he says. “In its purest sense, it is a game.”

The juror questionnaires he develops provide attorneys with detailed profiles of prospective panelists, everything from personal backgrounds-including education, occupation, marital status, religious and political affiliations-to the individual’s defining attitudes, such as his or her feelings about the judicial system.

Mixed among the hundreds of questions are 35 or so that subtly plumb jurors’ attitudes on matters directly related to the case. “Do you think the police are always believable?” “Does the fact a person has been indicted mean they are most likely guilty?”

“The response of one of the potential jurors in the Zamora case was interesting,” Burgund recalls. “On the question of defense lawyers, this person wrote that ’a defense lawyer is a person who tries to get as much money as he can to get people off, whether they are guilty or not.’ ’Prosecutors,’ she answered, ’are avengers tor the people.

Burgund has trained himself to identify people likely to be what he calls “good reasonable-doubt jurors.”

“Several years ago,” recalls veteran Fort Worth attorney Jeff Kearney, “I was defending an armed-robbery case in which we were arguing that the victim had misidentified my client. One of the people Jim very much wanted on the jury was a man who had been robbed at gunpoint only a few months earlier. It seemed to me that he was exactly what we didn’t want on the jury. But, finally, Jim convinced me that this guy-who had been able to provide police with a detailed description of his assailant- would be suspect of the victim in this case, who had not been able to give authorities specifics like height, weight, and clothing worn by the robber. As it turned out, the guy I hadn’t wanted on the jury wound up as the foreman and did a lot to convince the jury to return a not-guilty verdict.”

In cases where massive media attention has shaped public opinion one way or the other-like in the Graham-Zamora cases-Burgund says his immediate objective is to find those jurors he describes as “oppositional.” For instance, people who work in cross-sex occupations-the female soldier or the male nurse-generally make good jurors.

“You look for someone who says, ’ Hey, if everyone else thinks one way. I’m going to think just the opposite,”’ he explains. The ideal hypothetical juror for such a case? “I’m looking for the long-haul truck driver who likes gardening and classical music; the guy who is accustomed to not really fitting in.”

Burgund increasingly is apt to pretest-actually audition-the lawyers, too.

“In about 20 percent of the cases I’m involved in, we do a mock trial to see what the reaction to a particular defense might be,” he explains. To accomplish that, Burgund hires 24 people from a temporary employment agency, rents a hotel meeting room, and then looks on as the lawyers present their case.

Afterward, he quizzes the mock jurors to discover what in the attorneys’ presentations moved them and what did not. It is not unusual, he says, for trial strategy to change dramatically after hearing their answers.

Burgund cautions that even his scientific approach is far from foolproof. Years ago, he recalls, during a civil trial in Greenville, the defense lawyer suddenly interrupted proceedings to urgently request a bench conference with the judge. “The attorney.” Burgund says, “whispered to the judge that the juror in seat No. 5 was not the same woman who had been there on previous days.

“The shocked judge quickly called the woman to the bench.

“Sure enough,” Burgund continues, “she was not among the jurors who had been selected. She explained to the judge that her friend-who had been picked to the jury-had some shopping she needed to do and had asked if she would sit in for her. Needless to say, she hadn’t taken her responsibility as seriously as we’d hoped she would.”

Burgund suggests that the most vital commodity offered by a jury expert is objectivity. “As a rule,” he says, “lawyers become very partisan once they get involved in a case-to a point where it can hurt [hem and what they are attempting to accomplish in the courtroom.”

After reviewing the Zamora case, he knew he wanted jurors most likely to embrace the idea that one person could be controlled and even brainwashed by another. “I’m convinced that is what happened in this case,” he says. “The question became, why would she choose to literally jump into the grave with David?”

The answer. Burgund argues, lies in understanding how Charles Manson controlled his female followers.

“Many of the so-called Manson women were very much like Diane Zamora,” he says. “They were attractive, intelligent, had no previous history of criminal behavior. But there was something missing in their lives. Several of them came from dysfunctional families, just as Diane had. So, in a sense, they gave up their lives and allowed Manson to take over. That, I think, is what happened to Diane Zamora.”