Kyle Rittenhouse’s defense team has retained the services of O.J. Simpson’s former jury consultant.
Jo-Ellan Dimitrius was photographed during a break in court proceedings speaking to Rittenhouse’s mother and sister last Thursday.
She was also photographed several times speaking to lead defense attorney Mark Richards during the jury selection process last Monday.
Here’s some video of that moment:
— Cathy Russon (@cathyrusson) November 10, 2021
According to her website, Dimitrius “has consulted in over 1,000 trials and picked over 600 juries.” Among the defendants whose cases she worked include the following: “Night Stalker (Richard Ramirez), McMartin Preschool, Rodney King, Reginald Denny, John duPont, Francis Ford Coppola [“Pinocchio trial”], O.J. Simpson, Jayson Williams, Scott Peterson, Kobe Bryant, Robert Blake, Joseph Nacchio (CEO of Qwest) and criminal and civil cases related to the Enron prosecution.” She was also a “body language expert” for ABC’s Dancing With The Stars.
“She has evaluated over 10,000 jurors, witnesses, lawyers and even judges during trial, and at least that many more in pre-trial focus groups and mock trials,” her website continues. “Her astonishing ability to understand and predict the behaviors of jurors, witnesses, lawyers and judges led to her being nicknamed ‘The Seer’ by the American Lawyer Magazine.”
In a 2016 “Inside Edition” profile, Dimitrius recalled that she helped select a so-called “perfect juror” for the O.J. Simpson criminal prosecution: “a female African-American with high school education or less.”
“The result,” the television show added, was “was a jury more inclined to be sympathetic to Simpson — eight black women, one black man, one Hispanic man and two white wom[e]n.”
The program noted that “Dimitrius observed how the jury reacted to each witness and advised the defense on [its] line of questioning” during the Simpson saga.
It is no surprise that Dimitrius has been seen regularly conversing with attorneys, with Rittenhouse’s family, and with Rittenhouse himself as the current trial unfolds in Kenosha.
Twenty jurors were chosen to hear the Rittenhouse case. Twelve are regulars; eight are alternates. Only one is a person of color.
Jury consultants — sometimes called litigation consultants — are called upon to help litigants select a panel of jurors to hear a case. Oftentimes, jury consultants have law and/or psychology degrees. While they may be helpful, they add to the costs of litigation, and not all defendants can afford their fees. They tend to be highly sought in high-dollar corporate civil actions. Though criminal defendants can hire jury consultants, defendants are not entitled to the services of a consultant the same way they are entitled to the services of a lawyer under the Sixth Amendment.
“[A] jury consultant is not a ‘basic’ tool of the defense,” the Texas Court of Criminal Appeals held in a 1999 case that addressed a defendant’s request to have one appointed. “Selecting a jury is part of an attorney’s stock-in-trade. Although a jury-selection expert’s assistance would no doubt be helpful in nearly every case, such assistance is a luxury, not a necessity.”
The Fifth Circuit Court of Appeals ruled similarly in a 2000 case involving a Texas man sentenced to death:
Despite [the defendant’s] claims to the contrary, jury selection is not a mysterious process to be undertaken by those learned in the law only with the assistance of outside professionals. All competent lawyers are endowed with the “raw materials” required to pick a jury fairly disposed toward doing substantive justice. While the wealthiest of defendants might elect to spend their defense funds on jury consultants, indigent defendants are not privileged to force the state to expend its funds on this exercise in bolstering an attorney’s fundamental skills. Meanwhile, of course, a defendant does not lack “an adequate opportunity to present [his] claims fairly” because he has been denied a jury consultant. Communicating with the jury is a quintessential responsibility of counsel.
In 2019, Supreme Court Justice Brett Kavanaugh refused to allow payments for jury consultants under a fee shifting provision of the Copyright Act.
Law&Crime was not able to easily locate any Wisconsin case law which addresses jury consultants.
Dimitrius’s office confirmed to Law&Crime on Thursday that Dimitrius was connected to the Rittenhouse defense but declined to answer other questions due to client confidentiality.
Two jurors have already been dismissed from the Rittenhouse panel. One, a man, joked about the number of bullets the police used to shoot Jacob Blake. Blake’s injuries in the summer of 2020 at the hands of a Kenosha police officer resulted in the civil unrest that drew Rittenhouse and a number of like-minded individuals to the city. Various members of that group claimed to be providing medical services (Rittenhouse said he was an EMT; he wasn’t) or that they would otherwise protect the city or its businesses. Another juror, a woman, said she was pregnant and was experiencing discomfort; Judge Bruce Schroeder allowed her to leave the group Friday morning of last week.
Read Law&Crime’s continuing coverage of the Rittenhouse case here.
Editor’s note: this piece has been updated to include a brief reply remark from Dimitrius’s office. It previously said that the office did not immediately reply to a Law&Crime request for comment.
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