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While authoritative studies have yet to be compiled, jury consultants are beginning to correlate TV habits with a juror's likely behavior during a trial and deliberations. Talk-show watchers, says Jo-Ellan Dimitrius, a jury consultant in Pasadena, California, are considered more likely to distrust the official version and to believe there are two sides to a story. At the same time, jurors who regularly watch such reality-based police shows as America's Most Wanted may harbor strong law-and-order beliefs. "We want to find out what drives a potential juror to watch the shows," says John Gilleland, a jury consultant with FTI Corp. in Chicago. "It's a signal to look at a person more closely."
Given the popularity of the victimization defense, attorneys have fewer qualms about taking a chance on exotic arguments that may, at the very least, bring their clients lighter sentences. The American Bar Association Journal this month cited a case in which a defense lawyer insisted that indulging in pornography was a form of intoxication -- and thus reason to mitigate the sentence an Indiana man received for rape and murder. His client suffered from sexual sadism because of pornography, rendering him unable to gauge the wrongfulness of his conduct. Another lawyer in Milwaukee coined "cultural psychosis" to explain why an inner-city teenager killed another for her leather coat. The defense attorney sought to convince jurors that the girl's traumatic childhood in a violent inner-city neighborhood created a mental disorder similar to the posttraumatic stress syndrome that afflicts some Vietnam veterans.
The courts refused to admit those two arguments, but attorney Bill Lane had better luck with a legal strategy called urban survival syndrome. His client, Daimion Osby, 18, of Fort Worth, Texas, was accosted last year by two men who in the past had threatened him over a gambling debt. Osby pulled out a .38- cal. pistol and shot the unarmed men to death. The case ended last month in a mistrial. Though 11 of the 12 jurors voted for conviction, the foreman opted for acquittal. He agreed with the argument that Osby shot Willie Brooks, 28, and Marcus Brooks, 19, in part because the environment in which all three men lived -- one of Fort Worth's most dangerous neighborhoods -- heightened Osby's fear.
"Mr. Osby was threatened by young black men who fit the profile of the most dangerous men in America," says Jared Taylor, author of Paved with Good Intentions: The Failure of Race Relations in Contemporary America and an expert witness for the defense. "His decision to use his weapon when attacked is more understandable, since his assailants fit this profile." Urban survival, said Lane, "is an extension of the law of self-defense to try to make the jury understand the point of view of our client."
But African-American critics say the urban-survival defense harks back to a time when blacks were seen as an indistinguishable whole: volatile, angry and presumed guilty. "((The Osby mistrial)) says 'these folks' can't help shooting each other," says the Rev. Ralph Waldo Emerson, a Fort Worth minister. "And it says to already nervous law-enforcement officials that they'd better be ready to draw when they stop someone in our community."