Jury experts are warning both sides in the Kwame Kilpatrick trial to be wary of a potential legal land mine: stealth jurors.
Experts say that though some prospective jurors in high-profile cases might lie to get rejected, others might lie to get accepted -- either because they have an ax to grind with the accused or the government or they want their 15 minutes of fame.
Jury selection officially starts today in U.S. District Court in Detroit in the public corruption trial of the ex-Detroit mayor and three others.
"On a case like this -- it has affected enough people that it's smart to be on the lookout (for stealth jurors)," said California jury consultant Richard Matthews, who has consulted on numerous high-profile cases, including O.J. Simpson's murder trial.
Research by DecisionQuest shows roughly 17% of prospective jurors nationwide historically qualify as interested in being stealth jurors.
Matthews said he believes the risk of seating a juror with an agenda is relatively low in most cases.
"But when you're talking about public corruption trials, maybe the risk of that goes up a bit. I think you need to be aware of it, and you need to sniff it out," he said, noting runaway jurors can be problematic, "especially in a trial with great local interest where a defendant allegedly has harmed a lot of people."
Kilpatrick has argued he can't get a fair trial in Detroit, saying the region is too emotionally charged and biased against him.
"I'd be better off if you just take me down and hang me from that fist downtown," he said at a news conference last month.
Hidden bias tricky
Starting at 9 a.m. today, attorneys on both sides and U.S. District Judge Nancy Edmunds will begin questioning the first batch of 30 prospective jurors to see how much they know about the case and uncover any potential biases.
The lawyers have a pool of more than 200 people to pick from. The goal is to whittle it to 66 and then pick the final 12 jurors and six alternates from that pool.
The final panel will decide the fate of Kilpatrick; his father, Bernard Kilpatrick; his longtime contractor friend Bobby Ferguson, and ex-Detroit water boss Victor Mercado. The defendants are charged with running a criminal enterprise through the mayor's office to enrich themselves by rigging water contracts and extorting city contractors.
All four men have denied the charges.
The prospective jurors already have filled out questionnaires, and their answers have cleared the initial bias hurdle with both sides.
Experts note that uncovering any hidden biases is the tricky part, and jurors with hidden agendas could sneak their way onto the panel.
"In this type of case, I would be very concerned about it. It's a high-profile case," said veteran jury consultant Jo-Ellan Dimitrius, who has consulted on such trials as those involving Simpson, Rodney King, Kobe Bryant, Scott Peterson and Jayson Williams.
In the last decade, stealth jurors have triggered controversy in several cases, including the securities fraud trial of Martha Stewart, the double murder trial of Peterson -- convicted of killing his wife, Laci Peterson, and their unborn child -- and a wrongful-death lawsuit against the tobacco industry in Florida.
No background checks
Jury experts say jury selection in Kilpatrick's trial could be even tougher because the judge has prohibited the lawyers from conducting any background checks on prospective jurors. Those tactics, they say, are commonly used by jury consultants and lawyers who want to make sure prospective jurors aren't hiding anything.
Edmunds, who is disclosing the jurors' names only to the lawyers, has blocked them from "conducting any type of surveillance, investigation, or monitoring (via the Internet or any other means) using that juror information."
Veteran jury consultant Philip Anthony said stealth jurors "continue to be a phenomenon in more well recognized trials."
In the Detroit public corruption trial, Anthony said the prosecution likely will want to seat jurors who indicate feelings of being betrayed or let down by the defendants. The defense, he said, "would likely do well focusing on jurors who feel capable of seeing the gray areas."