Isolating trial jury is costly and risky

January 31, 2004 

Lionel Cryer knows what it's like to be a sequestered juror in a high-profile double-murder trial. And he thinks it's a bad idea in the Scott Peterson case.

"It would be a mistake," said Cryer, one of 12 jurors who acquitted football star O.J. Simpson of two murder charges in 1995 after a marathon trial that ended after three hours of deliberation.

The reason the verdict came so quickly: "These people had all been sequestered for 10 1/2 months and wanted to just get out of there," Cryer said.

Scott Peterson's lawyers might be hoping for a similar outcome in their bid to keep jurors isolated -- one of two relatively rare tactics the defense has indicated it will pursue.

Peterson's attorney, Mark Geragos, also plans to ask for a separate jury to decide whether Peterson should receive the death penalty if found guilty, according to documents filed in San Mateo County Superior Court.

Both steps are cumbersome, costly and rarely granted, legal observers said. But either could be pivotal to the trial's outcome.

"You only have to look at the O.J. case," said Laurie Levenson, a professor at Loyola Law School and a former federal prosecutor in Los Angeles. "In the last high-profile sequestration case, it didn't work to the prosecution's advantage."

In a case that has seen similar media attention, Peterson is charged with murdering his wife, Laci, and unborn son, Conner. Prosecutors are seeking the death penalty.

Stanislaus County prosecutors oppose sequestering jurors for Peterson's trial. Sequestration -- in which jurors usually are kept in a hotel, shuttled to the courthouse, guarded around the clock, forbidden to see or read news accounts of the case and given limited time with family -- can be a psychological pressure cooker.

"Putting 12 people together and making them stay together morning, noon and night, to spend your evening and then spend your weekends with them, it takes a bad toll," Cryer said. "People get into cliques. These people antagonize those people. It's vicious, man."

The rationale for sequestration is to isolate jurors from potential pressure from commu- nity or family while shielding them from publicity and inaccurate or biased information.

"The corollary is that if people are sequestered together in a group, they will focus hard on the task in front of them," said Beth Bonora, a veteran trial consultant in San Francisco. "They will miss their family and friends, but the idea is they'll be working together, and they won't be exposed to more bad publicity or the pressure."

The reality, at least in the Simpson case, was something different, Cryer said.

Despite plush accommodations at the Inter-Continental Hotel in Downtown Los Angeles -- now the Omni Los Angeles Hotel -- Cryer saw his surroundings as a gilded cage.

The jurors were kept in an isolated wing on the fifth floor for 266 days, roughly nine months. On trial days, they lined up in the morning at the freight elevator. Televisions in their rooms were disabled. Their reading material was scrutinized, and their refrigerators were locked.

Conjugal visits were allowed once a week, Cryer said. Family and friends could visit once a week at the courthouse, with deputies strategically placed throughout a large room. There were also Sunday get-togethers at the Sheriff's Department academy.

The strain

"You felt you were being treated as a criminal all the time," said Cryer, who was dating at the time of the trial and worked for a telecommunications company that paid employees for jury service. "I felt the way I was being treated was tantamount to a fascist state of mind."

He pointed to a meeting he had with Judge Lance Ito after being called to chambers to discuss his reading material: John Grish-am's legal novel "The Chamber." Cryer said he was allowed to keep the book, but that small victory paled against the pervasive discontent among jurors.

Court officials took steps to counter that, bringing in entertainers such as Jay Leno to perform, allowing trips to the mall and arranging a ride in the Goodyear blimp where some jurors got to briefly take the controls, Cryer said.

But the original panel of 24 -- 12 jurors and 12 alternates -- dwindled to 12 jurors and two alternates, Cryer said.

Some were let go amid questions about whether they had received outside information about the case, he said.

"Believe me, information was passed. That's my belief," Cryer said. "I don't know of it person- ally, but it wouldn't have been hard," he said, pointing to the free time during conjugal visits.

Cryer, now 52, said he had to be taken to the hospital twice over the course of the trial -- first for an asthma attack, then after suffering what he termed a mild heart attack.

Cryer said he asked to be dismissed, but at that point it was down to two alternates and "they were bending over backwards to try and keep that jury intact."

"I think I wound up getting to go to a UCLA (football) game one Saturday," he said.

The strain of sequestration apparently came into play during deliberations.

Cryer said the first anonymous poll was 10-2 to acquit. The two initial dissenters did not push the issue, Cryer said.

"I sensed maybe they were intimidated by other folks there," he said. "I, for one, tried to encourage these people to speak freely. I wanted to make sure that the process was done correctly. But all of the arguments that came up were for acquittal."

The circumstances may be different if a judge orders sequestration in the Peterson case, where it has been estimated that testimony might take four months.

Court documents don't specify whether Peterson's defense wants sequestration for the entire trial or only for deliberations.

The risk

In either case, the tactic can be risky, legal observers said. In the Simpson case, prosecutors requested sequestration. The defense initially opposed it, citing the hardship to jurors and the potential for a pro-prosecution bias if jurors thought the government was giving them free perks, such as top-notch hotel stays.

Sequestration can create pressure on dissenters in deliberations because of the push to be done with the case, Bonora said. By asking for sequestration, the defense might be gambling that acquittal votes initially will outnumber conviction votes, she said.

And jurors might consider the prosecution responsible for their isolation, Levenson said.

"They tend to hold it against the prosecution because the prosecution is putting on the bulk of the evidence," she said. "There are always witnesses who take longer than expected and glitches with presentations and evidence."

The cost

The move is also costly. In the Simpson case, the tab totaled more than $3 million, said Rick Vandenberg, principal accountant auditor for the Los Angeles County auditor-controller's office.

The bulk of that -- more than $2 million -- went to the Sheriff's Department, primarily paying for deputies to guard the jurors, Vandenberg said.

The $3 million, not adjusted for inflation, would represent roughly 20 percent of the Stanislaus County Superior Court's approximately $15.1 million annual budget.

"There's no way we could cover the cost of something like that," court administrator Don Lundy said. "That would be something we would obviously put in the budget to submit to the state for reimbursement."

Bringing in a second jury to decide the possible penalty phase also would be costly, and offer a distinct advantage for the defense.

In that scenario, the jurors who would decide Peterson's guilt or innocence would not be screened on their willingness to order the death penalty, opening the door for more liberal jurors to sit on the case, legal observers said.

"A death-qualified jury is much more likely to have harsher attitudes about the criminal justice system," Bonora said. "You are getting a jury that by definition is not particularly interested in mercy and may take a harder line on conviction."

Such motions rarely are granted, though, when there is a single defendant, Levenson said, because the state Supreme Court has ruled the "clear legislative intent" of the law is to have a single jury try both phases.

"The defendant is going to have to have a really amazing reason to do this," Levenson said.

Bee staff writer John Coté can be reached at 578-2394 or jcote@modbee.com.

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