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Durst Acquitted
  Robert Hirschhorn, Robert Durst's jury consultant, discusses his trial strategy
November 13, 2003
 

Court TV Host: We're going to be talking to Robert Hirschhorn. He was the jury consultant to the Durst defense team.

Court TV Host: Welcome, Mr. Hirschhorn. Thanks for being our guest today.

Robert Hirschhorn: Good afternoon, everyone. The first thing I want to say is that I know a lot of people are surprised by this verdict, but if you had sat through all of the testimony and seen all of the evidence, you would not be surprised by this verdict. Having said that, what questions do you folks have?

Question from Dave: Based on the result, you clearly did a great job for the Durst defense. What did you look for when recommending pick or strike for jurors for the Durst defense?

Robert Hirschhorn: Excellent question. We did a lot of research, mock trials, and focus groups, before the trial. We learned that the people that were most able to separate the shooting from the post-event conduct were intelligent jurors. And by intelligence, I'm not talking about people who necessarily had college degrees -- just smart people. We found that women tended to be better jurors than men. That explains why we had eight women on the jury. And we found that emotional or visceral jurors were not as open-minded as cerebral jurors.

Question from tantre: Were you surprised the jury came back with a not guilty verdict?

Robert Hirschhorn: My honest answer is yes. In my heart, I knew that was the right verdict. I just hoped that the jury had the courage to return that verdict.

Question from luv2teach: What kinds of questions were posed to the jury?

Robert Hirschhorn: That's a very good question. Let me read for you one of the most insightful questions that we asked virtually every juror. Here's the question: "How strongly do you agree or disagree with this legal principle: It is better to free nine guilty people than to convict one innocent man." There were some jurors that literally took five minutes to answer that question, because the principles at stake were so profound, I could have picked the jury based on the answer to that one question alone. I should also add that we gave the potential jurors a range of answers that ranged from "strongly agree" to "strongly disagree," and everybody who disagreed with this principle we gave a peremptory strike.

Question from Dave: Were you involved in developing defense strategy other than jury selection?

Robert Hirschhorn: Yes.

Question from luv2teach: I would have to disagree...does that make me a good juror?

Robert Hirschhorn: Let me ask you this question: What did you think of the jury's verdict?

Question from NotOnTheJury: This cannot be an exact science. How much influence on the verdict do you think jury selection has?

Robert Hirschhorn: Another great question. It is not science at all, in my opinion. There are a lot of jury consultants out there that try to sell lawyers on the notion that jury selection is a science. The truth is, it's an art, an art that involves an environment where jurors feel comfortable expressing their views. So when I'm looking at the kinds of jurors that I think would be favorable and unfavorable, I'm looking at their life experience and value system and not their demographic data. That's where the art of jury selection comes in.

Court TV Host: Here's luv2teach's reply to your question, what did you think of the verdict?

Question from luv2teach: I was baffled, but I understand the jury's position and what they were there to decide.

Robert Hirschhorn: Fascinating. It's clear you're very intelligent. But help me understand why you think it's ever okay for an innocent person to lose their freedom, or be put in prison.

Question from gm: The only question I have is: how will you feel if he kills again?

Robert Hirschhorn: There is no doubt in my mind: he will not kill again. This was a case of self-defense, when he reached for the gun, and an accident when he fell to the floor and the gun discharged.

Question from sparkle: Is it safe to have a man like Durst with poor reasoning skills, out and about in public life. To kill in self-defense is one thing, but to chop up the body?

Robert Hirschhorn: It's safe to have in public life anybody who has the right to enjoy the freedoms of an American citizen. In streets all over our country there are people walking around with poor reasoning skills, mental illness, and a host of other emotional psychological problems. So the idea that somebody with mental illness has killed and may soon be walking the streets in this particular case does not bother me one iota. Bob Durst can come to my house and babysit my kids. I just wouldn't shove a gun in his face.

Question from Lizzy: What one piece of evidence do you think had the largest impact on why the jury decided the verdict of not guilty?

Robert Hirschhorn: Lack of a head. Here's why: the body, and body parts, did not teach the jury anything about the cause of death. Morris Black died as a result of a gunshot to his head. If there was a hole in the back of his head, the jury could easily have concluded intentional murder. If the hole was to the front of Mr. Black's face, it would have proved that what Mr. Durst said happened was true. So, believe me, we wanted to find the head as much as the State did because we were convinced there was a hole in Morris Black's face.

Question from Dave: Based on your experience, what did you think, in general, about the jury candidates in Galveston?

Robert Hirschhorn: I used to live there. I love Galveston. And I find that it's once again a remarkable cross-section of the community. Jurors in Galveston are nowhere near as outspoken or candid as Manhattan juries, but they certainly reach the right result just as often. Doesn't someone want to know how much I got paid?

Question from A: Had any of these jurors ever served before?

Robert Hirschhorn: Yes. Everyone that had served on a jury before had returned a guilty verdict in those other cases. It's not like these were a bunch of ringers for the defense.

Court TV Host: So you DID ask them during voir dire how they had voted in their previous cases?

Robert Hirschhorn: In a lot of jurisdictions, lawyers have the mistaken belief that you cannot ask a juror who had previously served what verdict they reached. But this is a misconception by many lawyers. Because our jury process is open to the public, and the verdicts are public, I am unaware of any statute or case law that prohibits a juror from disclosing, or a lawyer from asking, about a prior verdict of a jury. My view is that you cannot ask the juror any of the particulars about the deliberation process, but you can certainly ask about the publicly recorded result.

Question from kms: How much did you get paid?

Question from reach: Yes, how much does it cost?

Question from Dave: I would like to know how much you got paid.

Question from reach: Yes, how much is it for the services of a jury consultant?

Robert Hirschhorn: Did you see the movie "The Runaway Jury"? Well, I got paid a helluva lot less and unlike him, I did not tamper with the jury. I obviously can't disclose the amount I got paid, but folks certainly can go to my website, where we post the services we provide, and the fees that we charge. It is true that our hourly and daily fees are enormous, in my opinion, but there is also a great deal of work that we do pro bono. So we subscribe to the Robin Hood Principle -- take from the rich and give to the poor.

Question from luv2teach: How are you sure when jurors are answering honestly?

Robert Hirschhorn: Body language, and eye contact. I believe that the eyes are the mirror to the soul and rarely deceive. That's why I look at eyes and not lips.

Question from NotOnTheJury: I firmly believe the jury did the right thing. However I am surprised. They probably did not like Robert Durst and probably think he is guilty. I'll also bet they are afraid of any future crimes and that they may have blood on their hands. What advice can you give a juror to get past those feelings?

Robert Hirschhorn: What a great question. The bedrock of our freedom is that we not guess people into prison. And what will keep tyranny out of our lives is when we hold the government to the standard known as beyond a reasonable doubt. The fact that Robert Durst was found not guilty tells me that our freedom and liberty are still intact. And if that doesn't make you proud to be an American, nothing will.

Question from reach: Do public defenders retain the use of a jury consultant in defense of their poor clients?

Robert Hirschhorn: Yes. In the last 12 months I have done four court-appointed cases. All in death penalty cases, all at a fraction of my normal fees. And the reason I do this is because I am adamantly opposed to the death penalty, and I feel an obligation to help those who could not otherwise afford our services.

Question from pauliek: Do you conduct focus groups before or after the jury has been picked? After, no. But before, yes. The tool we use after a jury has been empanelled is called a shadow jury. But prior to trial, we use focus groups and mock juries to either refine our message or to make sure the jury understands our defense.

Court TV Host: Any closing thoughts?

Robert Hirschhorn: If you get a summons for jury duty, please make the sacrifice and put up with the inconvenience, and serve on the jury. There is no greater honor; there is no greater way to serve our country, than to be on a jury. And remember this: before we take away anybody's life or liberty, the prosecution must prove their case beyond all reasonable doubt. Thanks for having me, and I hope we get to chat again in the future.

Court TV Host: We hope so as well.

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