Cry Havoc: Jury Selection in a World Without Civic Virtue (Part I)

 

This is not a manifesto on the virtues of jury duty. I will not wax romantic about the importance of juries in our system of justice or in any system of representative government. I hold no degrees in sociology, and so I do not pretend to be an expert on the behavior of humans in large groups. Jury consultants charge handsome fees to the attorneys who can afford their services; in exchange, these consultants provide detailed profiles on the ideal type of juror for an attorney’s case. What I provide here is information that would cause a “respectable” jury consultant to never be hired again, not because it is not true, but because no one in the legal profession wants it to be true.

But for a public defender in trial, jury selection is war by other means. Victory is rarely a plausible option; all too often, we conduct a jury trial for no other reason than our client’s have refused a plea bargain, or because the prosecution refuses to make your client an offer that is sane or humane. Sometimes my “defense” amounts to quibbling about the number of penile penetrations that the victim received (after all, each penetration that I can disprove means years off my client’s sentence). Sometimes my “defense” is saying that my client did not intend to kill his father by stabbing him in the neck, but merely to wound him grievously. Sometimes my defense will rest on solid legal grounds while repelling every other member of civilized society.

My task is to save this client’s life from that civilized society, if possible. No professional consultant would be able to create a profile of a jury that is sympathetic to my client.

Many of these thoughts came together for the first time during a recent trial, or rather, these thoughts spun wildly in my head as my panel of 75 potential jurors trudged into the courtroom where my client’s trial was being held. This particular client was accused of robbery. His robbery had begun as a simple petty theft when he walked out of the supermarket with two large cans of “malt beverage” (the smelly, affordable wasteland between beer and hard liquor). Things changed when the store security guard demanded a receipt; my client responded by brandishing a pointy weapon and saying something vaguely threatening, but definitely rude.

One by one and two by two the potential jurors filled the courtroom seats. Without fail, the first ones in would take the aisle seats, forcing others to lurch over their knees to get to other seats in that row. No one wants to sit next to each other, so everyone tries to leave 1-3 seats between themselves and the nearest seated person. Unfortunately, none of these people bothered to count the number of people in their group, or compare that number to the number of seats in the courtroom; every seat would be filled, and “personal space” was at best a temporary illusion.
Then a voice spoke to me from inside my head. Perhaps this was the ghost of John Adams, our second president and the man who defended British soldiers on trial for the Boston Massacre to a jury of Bostonians , or Jiminey Cricket, or whoever the embodiment of my conscience is supposed to be.

“You need to defend this man sitting next to you..”

 

Upon further reflection, my conscience was definitely more John Adams than Jiminy Cricket.

“You need to defend this man sitting next to you. If these people are going to put him away, then save your client from them.”

But how?! Not even my prettiest talking could save my from the overwhelming evidence against him. My only hope was that my 12 jurors would dislike and disagree with each other so much that they would not unite against my client.

As the great statesman Jiminy Cricket once said, cry havoc and let slip the dogs of war.

The judge summoned the first 18 people into the jury box. Twelve took the seats in the box, and the next 6 took seats in front of it. The front 6 would replace any jurors dismissed from the twelve in the box, and so the lawyers had a preview of who would take their places. His honor then began his questioning of the 18 potential jurors. I clicked my pen twice – a nervous gesture on my part with the accidental benefit of clearing my head before I prepare to jot down as much information as possible about these total strangers.

The judge began by asking what cities the jurors lived in: 7 out of twelve lived in “Santa Asphalt,” the largest city in my jurisdiction, 4 lived in the generic, contiguous suburbs that surround Santa Asphalt, and 1 lived in the affluent town to the south where people move to get away from Santa Asphalt.
The jurors provided their job titles with pride; unfortunately, most of their job titles gave me no idea of what their daily routines actually looked like. When a potential juror says that he or she is a teacher, nurse, dentist, contractor, or food server, I am able to get at least a vague picture of how this person spends most of his or her day. This was not going to happen with this group. To illustrate, you the reader can produce a potential juror’s job title by choosing one word from each of the collumns below.

Column A                Column B                Column C

chief                             systems                       manager

associate                     project                         vice president

deputy                         data                             engineer

assistant                      sales                           analyst

head                            marketing                  specialist

retired                        resources                    consultant

 

After the first fifteen minutes, I had almost no useful information about the people who could be deciding my client’s fate.

The judge continued by asking the following series of questions:

“Do any of you have moral, religious, or philosophical views that prevent you from sitting in judgement of another person?”

“Do any of you have problems with resolving conflicts in the evidence?”

“Can all of you hold all of the witnesses in this case to the same standard?”

“You cannot return a guilty verdict unless you are convinced beyond a reasonable doubt; does anyone have a problem with this?”

The judge took fewer than 90 seconds to ask these questions. Questions go by quickly when your targets respond with only shrugs and blank stares. If you, the reader, are wondering what some of these questions mean, then you are out of luck; the judge provided no clarification or explanation beyond the questions themselves. To top it off, the judge prefaced his final question with “does anyone have a problem with,” the one phrase guaranteed to throttle any possible response. No one wants to be seen as “having a problem” with a rule laid down by an authority figure in a black robe.

Sixteen minutes and 30 seconds have now passed, and I still had no useful information.

The judge turned questioning over to the district attorney. The DA’s awkward sputtering made the judge’s questions look like a thrilling, insightful Socratic dialogue by comparison. He asked whether the jurors would “follow the law” in as many different ways as he could think of. He made them promise they they would use “common sense” during their deliberation. He tried to illustrate circumstantial evidence by telling a story about a kid with cookie crumbs around his mouth (or something like that, I wasn’t really paying attention). After his analogy, the jurors’ quizzical stares, and his self-effacing attempt at humor, he had them promise to follow the law one last time before sitting down.

I checked my watch. I looked up, but then looked at my watch again. 45 minutes?! How does it take 45 minutes to convince a group of 12 non-felons who have driver’s licenses and current voter registration to obey authority and find my scary-looking client guilty without thinking too much about it?

“Mr. DeGuerre, you may begin,” the judge intoned.

 

To be continued…

 

 

 

 

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3 comments on “Cry Havoc: Jury Selection in a World Without Civic Virtue (Part I)

  1. Oh my gawd. It’s really that…beige?
    Hey, maybe you could practice the tricks that psychics and card players use? Like do they have dirty fingernails, flashy or fake jewelry, face tells, a limp?

    I suppose it doesn’t help that the process has now irritated the shit out of these people, who were already cranked at the inconvenience; and now transfer their anger to you and your client whose fault it is that they are stuck on jury duty in the first place.

    “Guilty. Now let’s go home.”

    I think the only question I’d want to ask would be,”So…who likes beer?”

    Can’t wait for the next installment!

  2. Jay23 says:

    What a tease! So good to have you back Mr. DeGuerre, this is really compelling reading please get to part II asap!

  3. Tsotate says:

    I’m actually shocked to see my city’s jury selection process as efficient (since last time I was called, it involved 1800 people waiting in line in 8 degree weather), even if only by contrast. However, the bailiffs here give very explicit seating instructions to avoid just that spacing problem. “Begin filling the benches in the order that you enter the room, starting with the front right, then front left, 2nd right, etc. 6 people to a bench.” Also, I think the judge read us at least 18 different paraphrased definitions of reasonable doubt.

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