Jury selector’s job in Binion trial not just hocus-pocus | NevadaAppeal.com

Jury selector’s job in Binion trial not just hocus-pocus

by John L. Smith

The buzz of apprehension was palpable as the prospective jurors in the Ted Binion murder trial filed into court Monday morning.

There was some nervous laughter and a murmur of small talk, but most of the locals who filled the gallery and stood in the aisles watched the defendants and attorneys, and awaited the entrance of the judge.

A dark-haired man seated at the defense table looked up from his work and briefly took in the crush of citizens.

The man’s name is Robert Hirschhorn. He is a professional jury picker. On Monday, he was arguably the most important person in the courtroom.

Although the job conjures images of Ouija boards, divining rods and fool-proof handicapping systems, the jury selector has become a widely accepted aspect of defense strategy in high-profile cases. Hirschhorn, a Texas resident, is an attorney who is paid not to think like one.

With assistance from defense consultant William Cassidy, Hirschhorn has pored over the nearly 300 lengthy juror questionnaires and has come up with a profile of the kind of person most likely to keep an open mind in a case awash in pretrial publicity, almost all of it damaging to the defendants. Finding sympathetic souls in a sea of citizens who would rather have been anywhere than stuck in jury duty is no mean feat.

But experience has taught Hirschhorn – whose credentials include representation of Oklahoma City bombing accomplice Terry Nichols, members of the Branch Davidian church, and William Kennedy Smith – the task can be accomplished.

Even if he wanted to discuss strategy with a stranger, Hirschhorn would be precluded from doing so thanks to a gag order that went into effect at 9 a.m. Monday. But I’ve studied his background for a couple weeks and have come away with a few observations, some gleaned from other media sources and his “Bennett’s Guide to Jury Selection and Trial Dynamics.”

Co-authored with the late Cathy E. Bennett, the book is a fascinating, comprehensive study of the physical and psychological aspects of jury selection and offers dozens of pointers to attorneys on how to educate, elicit information from and establish a rapport with prospective jurors.

“Lawyers are reasonably certain what the witnesses will say and can prepare accordingly,” Hirschhorn writes. “Jury selection is quite the opposite. … While some lawyers may be good speakers, they often are not good listeners.”

He put it more bluntly to the Denver Post after the Nichols trial, saying many attorneys suffer from a “law-botomy.”

“They dress, talk and act differently than other people and create an island for themselves,” Hirschhorn said. “The jury is the mainland.”

Not that many jurors are from Main Street.

An example. On Monday morning, the first prospective juror was an easygoing man who had family members on both sides of the law and is related to a polygamist clan. He was excused for medical reasons. The next was a woman whose husband was a Marine, but who also had family members with a history of drug abuse. Weighing the military discipline influences with the narcotics nightmares can’t be easy. She passed the first phase of questioning.

Although juror interviews were expected to take nearly three weeks, the selection could finish far sooner.

With a defense-sponsored survey estimating 97.2 percent of Southern Nevadans are aware of the Binion case and approximately half already believe defendants Rick Tabish and Sandy Murphy are guilty, selecting an impartial jury will prove challenging.

Compared to finding fair-minded citizens in the Oklahoma City bombing and Waco cases, selecting a jury for the State vs. Tabish and Murphy should be just another day at a very crowded office for Robert Hirschhorn.

John L. Smith’s column appears Wednesday. Reach him at (702) 383-0295 or Smith@lasvegas.com.