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December 20, 2005
Tales from the courtroom
I recently finished a trial and was complaining to a colleague about the frustrations of jury selection. Vast numbers of prospective jurors seemed to go out of their way to get kicked off, excused by the judge for cause, having expressed with mind-numbing repetitiveness that their life experiences had so tainted them that they were incapable of being fair-minded fact-finders.
Most of these prospective jurors struck me as law-and-order types, the kind of people I wanted in the jury box. As they managed to sabotage their chances of serving, I looked over at my investigator and whispered to him that these are the same people who complain when criminals "get off" and blame "bleeding-heart" juries.
It's okay to be biased; no one is truly a blank slate. What the justice system requires is that jurors simply promise to give the defendant the benefit of the doubt at the beginning of the trial, presume him innocent, and then see if the D.A. can prove the case.
As far as the presumption of innocence goes, it doesn't require a juror to lobotomize himself. Here's an easy way to explain it. Damn near every American alive in 1963 saw the TV broadcast of Jack Ruby shooting Lee Harvey Oswald, who died shortly thereafter. Having seen the film footage, a juror would still be required to presume Ruby innocent until the evidence had been presented.
The juror knew Ruby had done the deed; he just has to go along with a legal fiction while in the courtroom until such time as the prosecutor proves it happened beyond a reasonable doubt. That's why it's never wrong to say that O.J. Simpson, Robert Blake, or Saddam Hussein is a killer -- the presumption of innocence only applies to jurors in a courtroom. The public has no such obligation, and there is no such duty in the court of public opinion.
So, the next time someone tells you that you can't have an opinion about the guilt of a defendant in a high-profile case, tell 'em to pound sand, 'cause Lief says so.
Another burr under my saddle is jurors being excused by the court because they know the defendant, or the victim, or maybe a witness, even if they believe they can be fair. In the modern legal system, all parties strive for an antiseptic proceeding, wherein the jurors have been kept in perfect isolation from, well, from the world. How exactly is it that people received a trial in the past, when everyone in town knew each other, judge, jury, prosecutor, victim and defendant? An argument can be made that a "jury of your peers" traditionally meant that you had to be tried by your neighbors, who only had to promise to be fair and not pre-judge the case.
Anyhow, I stumbled across a blog by a local attorney who recently experienced jury selection from inside the jury box. It makes for an interesting read.
In my case we ended up with a jury that satisfied both sides, at least at the beginning of the trial; I say that because both sides hadn't used up all 10 peremptory challenges by the time we told the judge the "panel was acceptable to the People" and the defense, too. I suspect the defense was somewhat less satisfied with the jury it had picked by the time its members were done deliberating and ready to render their verdict.
Jury selection is the most difficult part of the entire trial; there are no hard-and-fast rules, other than don't keep a juror who looks at you like you're something nasty he stepped in while walking the dog. I actually saw a prospective juror raise her hand and tell the judge she couldn't be fair to the defendant because she "hated Mr. V.," the defendant's attorney, adding that she "think[s] he's an ass, and I'd probably hold it against his client."
I guess the bottom line is, pick twelve people you wouldn't mind chatting with over a beer when the trial is done.
Posted by Mike Lief at December 20, 2005 06:03 PM
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Comments
Hi Mike. Thanks for the link to and comment on my blog (Glib Gibberish), and for giving me the other perspective on jury selection. Not being a trial lawyer myself I find the whole thing quite fascinating.
Ironically enough, I think I may have met you last weekend at a mutual friend's surprise 50th birthday party. I was the single blonde in the white sweater looking awkward while hanging out with the 20-somethings. Small world.
Ask G.R. (I think that's the DA's name) if he remembers wanting to keep a gun-toting lawyer on his jury a couple of weeks ago and B's response to my answers. You'll get a kick out of the story.
Keep up the writing!
Posted by: GlibGal at December 21, 2005 02:46 PM