Two Houston Psychologists Are Proving the Best Defense Is Picking a Good Jury
updated 02/21/1983 AT 01:00 AM EST
•originally published 02/21/1983 AT 01:00 AM EST
Margaret Covington, 34, also of Houston, is another successful juror spotter. She had a B.S. in math and a Ph.D. in psychology when she took her first case six years ago and helped Houston defense wizard Richard "Racehorse" Haynes get an acquittal in the murder trial of Texas millionaire T. Cullen Davis. The day after the marathon eight-week jury selection ended she entered law school at Baylor, and she got her third degree in 1979. She has since had about 50 cases, 90 percent of them successful.
Lawyers say that jury selection is the most important part of a trial, but the choice traditionally is made by intuition or superstition: Men with mustaches, for example, were once considered unreliable, and women were deemed softer-hearted than men. Today about 50 specialists are making a new science out of spotting unbiased jurors (almost always for the defense), and Bennett and Covington are their stars. John Ackerman of Houston, who heads the National Association of Criminal Defense Lawyers, says, "No one in the field measures up to Cat." Of Covington, Texas attorney Tom Mulvaney says, "She's like having a guardian angel there to watch over me."
Both Bennett and Covington get from $500 to $1,500 a day for their services, but lawyers are willing to pay that kind of money for their expertise. Bennett, who grew up in Tampa, Fla., came to her job after running a halfway house for ex-cons and teaching interviewing techniques at attorneys' seminars. She collects all newspaper, TV and radio material on a case and meets with the accused before she accepts an assignment. "I only take cases I believe in," she says. "I have to feel that this person is not going to get a fair trial. Guilt or innocence doesn't really matter. I don't go in and ask, 'Did you do it?' Many of my clients are black, Indian or Hispanic, but even if they're white, publicity has often prejudiced the jury against them. My job is to ferret out bias and prejudice." In pursuit of that goal, she donates about 25 percent of her time to defendants who cannot pay.
The North Carolina-raised Covington often starts in another manner—by commissioning a poll of the community, at a client cost of $5,000 to $30,000. For the Davis case 1,000 people in Tarrant County, Texas were asked, among other things, how they felt about divorce and rich people, since those subjects were key elements in the trial. The resulting profile of potential jurors likely to be favorable to Davis was remarkably precise: They were Protestant women over 45, with kids under 18 still at home, and less than two years of college. Two who matched that profile became jury members. Covington also may gather information about the home environment of prospective jurors, with an eye out for political or religious bumper stickers, general tidiness, and alarm systems or watchdogs ("These indicate a more pro-prosecution stance"). "Someone who takes pride in his home tends to take his jury duty seriously," she says. She even observes handwriting: Flashy signatures, which defense lawyers can find on juror information cards, may indicate insecurity.
The approach of the two women is different as often as it is similar. Bennett urges her attorneys to refrain from intimidating would-be jurors and to ask open-ended questions ("Tell me about any prejudices you may have") rather than yes-or-no questions ("Do you have any biases against my client?"). She also watches faces. "There's an old saying that the eyes are the windows of the soul," she says, "and I believe that." Her favorite question is, "What is the most important thing you can teach your children?" In her terms, the best answer: "To respect other human beings."
"All I'm looking for is a person who will be open, flexible and sensitive," Bennett explains. "I don't stereotype people. No matter what their sex, race or creed, they're all different."
Covington, who as an attorney may interview jurors herself, also resists stereotyping but will take some generalities into consideration. Stressing that no rules are hard and fast, she says that engineers typically pay close attention to facts but tend to reject circumstantial evidence, while bankers may be readier to convict than most ("They turn down desperate people asking for a loan all the time"). Similarly, "nurses have seen injury and become calloused to it, so you don't want them if your attorney is going to have a lot of emotional appeals." Moreover, she says, "There's a general rule about the less independent sort of woman—that you're not really choosing that woman but her husband; chances are you're going to get him on the jury vicariously." As for religion, "Some members of the Jehovah's Witnesses, Pentecostals and strict fundamentalist sects tend to bring in very harsh judgments." People who read newsmagazines, Covington adds, "may be more detailed. Those who read PEOPLE might want vicarious thrills and excitement, which could influence their decisions in favor of a flamboyant defendant."
Covington sets even greater store on telltale mannerisms: A finger or hand over the mouth suggests concealment or lying; a sudden switch from gabbiness to terseness, or from frequent gesturing to repose, indicates discomfort or deception; extreme smoothness hints at insincerity, while somebody who shows no feeling in responding to an emotionally loaded question is probably hiding something. By contrast, truth-tellers open their mouths more, are more wide-eyed, more relaxed and lean forward while talking.
"Happy people tend to be neat," she concludes. "People who return the harshest verdicts turn out to be basically unhappy and feel they've gotten a raw deal in life. They think, 'Here's the chance to have authority.' "
Covington and Bennett also study the ways people mix, since a jury is made up of 12 strangers. Bennett notes those who are gregarious or withdrawn and worries about the shy juror who may go along with the crowd. Covington sometimes looks for assertiveness—brisk strides, eye contact—or even stubbornness. "If you have a case where the prosecution's evidence is overwhelming, a hung jury is a victory for the defense," she explains. To help set up such a hanging, she looks for strong-willed opposites who are likely to clash. If there is a lot of technical prosecution evidence, she even seeks out the poorly educated. "You might want the juror to fall asleep in the jury box," she admits.
All this sounds like loading the dice, but Bennett argues that the odds are already loaded the other way. "You're always going to wind up with a certain percentage of the panel being prosecution-prone," she says. "A lot of people out there think indictment equals guilt."
Not all defense lawyers are enchanted with the idea of using jury psychologists. For example, Houston's celebrated defense counsel Percy Foreman says, "I think they are a bunch of charlatans. If a lawyer can't do his own psychology, he'd better give up the law and go drive a taxi-cab!" But none of Bennett's or Covington's clients seem ready to take up hacking. "Cat has a very rare, almost intuitive talent for knowing how people will react," says New York City attorney Michael Kennedy, and John Ackerman adds, "She has made me a lot more human in the way I try cases." As for the secret of it all, Bennett says it's all quite simple. "Just keep your eyes open and your mouth shut. That's one of the problems with the legal profession. People talk too much."