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Should former jurors be paid to advise in a retrial?

Experts debate ethics of defense lawyer's strategy in gang-rape trial

By Kevin Drew

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A mistrial is declared in a case in which three teens were accused of videotaping a rape.
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(CNN) -- A recent decision by defense lawyers to retain former jurors from an Orange County gang-rape trial as consultants for the retrial is drawing both praise and criticism.

The attorneys plan to pay at least one former juror and possibly others for their opinions.

To critics, it adds financial incentive as a factor that could taint the justice of a defendant being judged by unbiased peers.

"Many jurors might perceive doing more than their civic duty," said Philip Anthony, CEO of the Los Angeles-based trial-consulting firm DecisionQuest. "It distorts the efficiency of the jury system. It's not good for the system as a whole."

But to supporters, it's a canny move that extends existing strategies used by both defense attorneys and prosecutors.

"I think it's a good idea," said Mark Smith, a New York trial attorney. "Just because you retain them for consulting doesn't mean you will get good advice."

In Santa Ana, California, attorney Joseph Cavallo announced in July he would employ jurors who participated in the first trial of his client, 19-year-old Gregory Haidl. The gang-rape trial of Haidl and two other men ended in a mistrial in June. (Full story)

Haidl, the son of an Orange County assistant sheriff, and the two other men continue to face accusations that they sexually assaulted a then-16-year-old girl in a 2002 videotaped encounter. The district attorney immediately announced he would seek a new trial against the three teenagers. (Full story)

The case has drawn attention partly because of the position of Haidl's father, a wealthy and politically influential man.

The retrial of Haidl, Kyle Joseph Nachreiner and Keith James Spann, all now 19, is expected to begin next year.

In an interview with CNN, Cavallo said seven of the 14 original jurors have agreed to act as consultants for his case. Another three have tentatively agreed. Cavallo said one former juror will be paid a rate of $50 per hour, but the others are likely to provide their opinions free of charge.

Cavallo said the former jurors would rate the witnesses, help with jury selection and review the strengths and weaknesses of the case. Cavallo said the former jurors would likely not attend the new trial.

By retaining them, Cavallo prevents the former jurors from speaking to prosecutors without the defense attorney's permission.

Strategies in a complex legal world

In the increasingly specialized and complex realm of the courtroom, lawyers already use tactics similar to paying former jurors for their opinions.

Before a trial, attorneys frequently use focus groups -- a group of people who represent the anticipated ethnic and class makeup of the real trial jury -- to test out strategy.

During a trial, attorneys often use "shadow juries," a practice where people are employed to sit in a trial and fill out daily questionnaires during the hearings.

After a trial, lawyers routinely ask jurors for feedback. The decision to speak to attorneys is up to individual jurors, but if they do agree to talk, they are routinely asked opinions about tactics and witnesses.

Cavallo pointed to these existing methods as justification for retaining former jurors during a retrial.

"What better focus group can you have," he asked.

Orange County District Attorney Tony Rackauckas criticized Cavallo's decision to retain former juries in a report by the Orange County Register newspaper.

Cavallo's strategy is "an outrageous attack on the integrity of the jury system," Rackauckas said in the newspaper report. "This signals to the next jury, if they vote for Haidl, they can get paid."

Cavallo, in his interview with CNN, said he decided to try to use the former jurors after Rackauckas announced he would use a focus group for the retrial of the three men.

"He only has himself to thank for this," the attorney said.

New York attorney Smith does acknowledge the dangerous territory the strategy approaches.

"What happens if jurors realize that having a hung jury could mean they could get paid later?"

Critics and supporters of paying former jurors to advise during a retrial agree on one point: The possible opportunities to pay former jurors are rare.

"Most trials have a clear outcome, guilty or innocent, so the chances of this happening are pretty small to begin with," Smith said.

"In reality, this is only a problem in more noteworthy cases," added trial consultant Anthony. "The problem of paying former jurors could be avoided if the judge just exercises his or her prerogatives during a trial."

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