Roanoke Times Copyright (c) 1995, Landmark Communications, Inc. DATE: SUNDAY, March 6, 1994 TAG: 9403080005 SECTION: HORIZON PAGE: F1 EDITION: METRO SOURCE: Maura Dolan Los Angeles Times DATELINE: LENGTH: Long
More than six months later, the Erik and Lyle Menendez juries were deadlocked, torn between the prosecution's argument that the brothers murdered their parents out of hatred and greed and the defense's contention they feared for their lives after years of abuse by their father.
The outcome has set off a tantalizing debate over a question that jury experts have grappled with for years:
Does gender play a role in jury decisions?
Some close observers of the sensational Menendez trials argue that it most surely did. Totaling the votes from both panels shows a majority of men for murder and of women for leniency.
On Erik's jury, the gender split could not have been more pronounced in the killing of his father, Jose. Deliberations churned up a bitter battle of the sexes, with the six men pressing for first- or second-degree murder and the six women lined up solidly for lesser charges.
But such gender divisions are rare on juries, experts say. And, in fact, it didn't happen that way on Lyle's panel: Women were even slightly harsher than the men.
Contrary to the widely held views of lawyers, studies have found the gender of jurors does not shape most verdicts. Although jurors of one gender may be responsible for a certain case's outcome, research shows statistical differences between male and female jurors only in sexual assault trials.
Sexual assault did figure in the Menendez cases, where both brothers claimed their father raped and molested them. But unlike Lyle, who said his father abused him for two years as a child, Erik testified that he was molested until the time of the killings. He, therefore, may have been perceived as having suffered more than his brother.
``Women might have been more likely to believe in the possibility of long-term sexual abuse than men,'' said Valerie Hans, a University of Delaware criminal justice and psychology professor and co-author of ``Judging the Jury.''
Experts said the gender polarization on Erik's jury also may have been triggered by hostility that developed during deliberations, prompting female and male jurors to unite by sex.
Women may be more likely than men to believe testimony by children, ongoing research suggests, but it is not clear whether that difference holds up after deliberations. More women than men also oppose the death penalty.
``The research suggests that gender typically doesn't make much of a difference [in verdicts] except in cases that involve real women's issues, like rape, where women are more punitive than men are,'' said Phoebe Ellsworth, a University of Michigan professor.
Whatever the reason, the Menendez cases only reinforced what many lawyers have long believed: Women, particularly mothers, tend to be more sympathetic to certain kinds of defendants.
``If you have a death penalty case,'' said prominent Los Angeles criminal defense lawyer Johnnie Cochran, ``you want a mother on the jury or someone who understands about raising children.''
But all sorts of factors can shape jury decisions. Juries often bend the law when they believe the outcome would be unjust, a factor cited by experts to explain the recent acquittal of Lorena Bobbitt and the verdicts in the Reginald Denny beating case.
Nevertheless, lawyers pick jurors according to stereotypes all the time. Most of their prejudices are based on how such people voted on previous juries.
Typically, women have been viewed as sympathetic to the defense, men as more rule-bound.
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San Francisco criminal defense lawyer Gil Eisenberg said he follows his own generalizations when picking jurors: Women in their early 20s are categorical, judgmental and rigid; middle-aged men are flexible; and Asians submit to authority.
But he said he has found exceptions to all of these rules. ``I pay attention to them,'' he said, ``but I am not rigid about it.''
Gerard Lynch, a former prosecutor and now a professor of law at Columbia University, recalled that a fellow prosecutor many years ago advised him never to seat a juror who wore sunglasses indoors.
Such behavior, the prosecutor opined, meant the person was probably a nonconformist who wanted to cultivate a ``hip'' image. Prosecutors also were wary of people who seemed stubborn, fearing a hung jury. But Lynch now would heed such admonitions no more than he would the daily astrology column.
The U.S. Supreme Court already has held that prospective jurors cannot be eliminated because of race alone and will soon decide whether they can be eliminated because of gender. In the case before the high court, the prosecution eliminated men from a jury deciding a paternity case.
Lower courts have frowned on gender-based disqualifications. The 9th Circuit Court of Appeals in October reversed the conviction of a man convicted of passing counterfeit securities because the prosecutor disqualified two unmarried women from a jury. The prosecutor had argued that the women would be physically attracted to the handsome defendant.
The influence of women on juries has not been widely researched. In fact, women have been on juries in significant numbers across the nation only since the late 1960s, said Stanford University law Professor Barbara Babcock, who has written extensively about juries.
Even after women got the vote, she said, some states continued to ban them from juries. In later decades, women were routinely excused from jury duty because of child-rearing responsibilities. In studying 20 mock juries in 1979 and 1980, Ellsworth, the University of Michigan researcher, found male jurors still did most of the talking. The men were more likely to be elected foreperson and interrupted women more often. Of the 20 juries, only one elected a woman as foreperson.
``I also found that a woman will say something and there won't be any real response to it,'' Ellsworth said. ``And sometimes in the next five minutes, a man will say the same thing, and people will say, `That's a good idea. We can get somewhere with that.'''
Research shows that men and women are equally good at recalling evidence and understanding points of law. Bette L. Bottoms, an assistant psychology professor at the University of Illinois in Chicago, is using mock juries to study how male and female jurors respond differently to alleged crimes against children.
In the Erik Menendez case, the male and female jurors were divided on their first ballot. ``We were all in shock'' about the gender split, said juror Wendy B. Delahunt, 51.
The deliberations eventually became ``nasty and ugly.'' One female juror accused the men of being uncomfortable with strong women, and the men referred to the women as ``you women,'' according to Delahunt.
Deputy District Attorney Lester Kuriyama, echoing several experts, said the tensions may have polarized the two camps by gender. Looking at the vote count on both juries, he said female jurors are not necessarily detrimental to the prosecution. ``I don't think you can say we don't want women on the juries'' during the retrials.
Jury experts said jurors, regardless of gender, often have difficulty deciding cases in which murder victims are portrayed as being as immoral as the defendants. Many said they were not surprised by the hung juries in the Menendez cases and refused to draw generalizations about gender from them.
Said Lynch: ``If you were going to bet money on the outcome of trials based on whether the jury had eight men on it or four men on it, you would lose your shirt.''
by CNB