30 Minutes Bay Area

The Jury Surgeon

30 Minutes Bay Area
Sunday, December 18th, 6:30pm

SCRIPT:

Congratulations, you've just been selected for jury duty.

When you get to court you may see a quiet man or woman sitting off to the side. If it's a really big case, that man will be Howard Varinsky. And He'll be watching your every move.

"Every move has a meaning. And you can read what people are thinking," Varinsky says.

Howard Varinsky is a jury consultant, picking jurors in the Michael Jackson trial, helping send Martha Stewart to prison, working to convict that handsome fertilizer salesmen accused of killing his pregnant wife.

"I greatly respect Howard's abilities," says Mark Geragos, defense attorney for Scott Peterson.

Geragos was Scott Peterson's Defense Attorney. Howard Varinsky worked for the prosecution.

"Each side is trying to get rid of the people who would be most unfair to them. It's not really jury selection, it's jury DE-selection," Varinsky says. "So you're looking to kick the people you deem most unfavorable."

Geragos: He and I spent 12 or 16 weeks together. Kind of going one-on-one.

Varinsky: Every juror he kept glancing back at me to see how I was reacting.

Geragos: I freely admit I was reading him as well as the jurors.

Varinsky: And I was My God! He's trying to read if I'm liking this person or not.

But Geragos never guessed that Varinsky would like one juror. They called her "Strawberry shortcake."

Varinsky: And so when I said to the prosecutors, we should keep her--I mean they looked at me like I was nuts."

Varinsky sensed she was more traditional than she looked.

Varinsky: And she wound up being one of the major influences in leading the jury first to the guilt verdict. And then to the death verdict

Geragos: Well I think clearly, he won ultimately.

Varinky's work starts long before the trial, often testing the facts of the case on focus groups.

Bichara Endrawos and Barbara Muller work for the Santa Clara County Public Defender's Office. We brought them to the CBS5 studios to argue a sample criminal case in front of test jurors while Varinsky looked on. As the jury started deliberating, Varinsky watched from another room.

Varinsky: Juries, bye the way, are very intelligent. They're very intelligent. And this shows you how a jury is re-orienting itself.

Hank Plante: What is the point of this whole exercise?

Varinsky: The point of this exercise is to get the lawyers connected to the jurors. The lawyers are in a very segregated, isolated environment, and they think legalistically. And they miss the audience. It's as if a comedian went on stage and told a lot of rotten jokes, and never knew that those jokes were funny, because they never tested before.

Kimberly Guilfoyle-Newsom, Court TV anchor: A lot of it is developing those ideas that the jury can seize upon, themes in your case.

Before becoming an anchor for Court TV, Kimberly Guilfoyle-Newsom was the prosecutor, along with Jim Hammer, in the infamous San Francisco dog mauling case.

Guilfoyle-Newsom: Oh I definitely think Howard was really key in that case.

On January 26, 2001, Diane Whipple is killed by two huge dogs owned by Robert Noel and Marjorie Knoeller.

Was it a horrible accident, or a crime?

The District Attorney decided to charge Robert Noel with manslaughter. But because Marjorie Knoeller failed to control the dogs during the attack, she was charged with second-degree murder.

Varinsky: Nobody thought we could get a murder rap in that case, no body.

Varinsky quickly put together a focus group jury.

Guilfoyle-Newsom: And we learned things about our case, about strengths and weaknesses, that you wouldn't ordinarily would have thought to be the case.

Varinsky: We really found some deep holes in the case. About half our focus group jury wouldn't vote murder. They would go manslaughter, they did understand that concept, but they wouldn't vote murder--because they just didn't see how this was intentional.

So for the trial, Varinsky designed a dramatic set of graphics showing 29 incidents and warnings, revealing the dog's vicious history. Varinsky wanted to focus the jurors on the legal concept of implied malice, a key standard for second degree murder.

Varinsky: If you think about putting a gun, a handgun on a table with two 10-year-old boys, locking the door and walking out and not coming back for 10 hours. Or handing a dead drunk the keys to your car--then you can begin to understand implied malice.

The jury bought it, and did ultimately convict Knoeller of second degree murder – a legal first in California. All with the help of focus groups.

PLANTE: Isn't this, what you do, total manipulation of the legal system?

VARINSKY: I don't think so. Unless you want your doctor to be ill-prepared and ill-trained and not informed when your doctor does surgery on you.

Kimberly Guilfoyle-Newsom: People will say, well is it cheating, because you're sort of getting a competitive advantage, and you're bringing in somebody--this hired gun--to sort of shrink the minds of the jurors, and figure it out so you can win. But the other side is trying to do that as well.

In the end, says Varinsky, it's not the jury consultant who has the final vote.

Varinsky: Jurors are always trying to right a wrong. It's a search for truth.