In my split brained world a month or so ago, I had just finished watching another episode of The People vs. O. J. Simpson and reading an article in the New York Times describing the Supreme Court decision overturning a 1987 death penalty case in which prosecutors had, according to every Justice except Clarence Thomas, excluded potential jurors who were black, in the trial of a black defendant charged with murdering an elderly white man. Johnnie Cochran said it best – “I’m trying to win!” So, apparently, were the prosecutors in the Supreme Court case who chose white jurors but excluded African Americans. They likely did so because they believed that African American jurors might begin the trial with a bias in favor of the black defendant. And after you watch The People vs. O. J. Simpson, you might be inclined to agree. I actually think the bigger tragedy might be that the court system took 29 years to address the notion that prosecutors so obviously eliminated jurors based on race.
In our desire to win every case, we cannot ever choose to exclude potential jurors simply because of race, religion or sex. The temptation is always there, because every trial lawyer understands that his or her case will play better to certain people. Get those people on the jury and you have a better chance of winning. For example, in a domestic battery case, the lawyer for a male defendant may logically believe that female jurors would not tend to believe the defendant. The temptation will be to try and eliminate potential female jurors because we think they will not fairly judge the case on the evidence and give our client fair trial.
The Supreme Court has made it clear again that the system requires blinders – sort of – when it comes to race, religion and sex. But my clients do not pay me to play, they pay me to win. So, as Johnnie said, “I’m trying to win.” Always. What this really means is that we have to educate every juror in our case and try to make them a member of our team, or at least get them to wait long enough for us to tell our story BEFORE they decide guilt or innocence.
If you have that domestic battery case, the tendency to believe that women will not fairly judge a man charged with striking his wife gets balanced against the rule prohibiting us from excluding every female from the jury pool. We have to be confident enough with our client, his story, and the provable facts to include jurors, men and women, in the process. Here are three things I try to do in every case when picking the jury.
First – I remind myself that I am not really “picking” a jury. At best, we are trying to exclude the folks we feel are least likely to accept our client’s version. Even though I like to use jury consultants, this is not magic. We do not get to “pick” anyone, for the prosecutor will just as likely “unpick” the person we want on the panel. There is little or no science to this stuff, and experience with jury selection is likely the best help in getting this right. So the more times a lawyer has been before a jury, the more likely that lawyer will wisely use his or her challenges to disqualify potential problem jurors.
Second – be honest and watch the panel. Be brutally honest. Tell them the stuff that makes you cringe. “Ladies and gentlemen, you already know that this case is about a argument, and my Bob’s wife claims he hit her. And they have some pictures showing a big bruise under her right eye.” For some potential jurors the fact that there was an argument and a bruise may mean you have no chance. Put down the notes and look at their reactions. Do they watch you or turn toward the client? Is anyone shaking his or her head? What to you feel they are thinking about your client?
Third – now tell your story. “But Bob didn’t touch his wife except to stop her from attacking him. Scratching him. Biting him, and hitting him. You will see pictures of Bob that tell the story better than I can. But can you agree to keep an open mind as we start this trial and wait for Bob’s explanation?” OK – now you start to see some heads nodding. And maybe some of them are the women you fear as jurors. So you talk with them, both men and women, about your fear that they cannot give Bob a fair trial. I mean you say it. “I am worried that you might not be able to give Bob a fair trial. Should I be worried about this?” And then, if you can’t quite make it happen, and you know that in your gut, you challenge them for cause, or use a peremptory, and hope that the panel includes folks who can fairly decide the case, in your favor. But you do so understanding that you cannot make these decisions based solely on sex, race or religion.
Being respectful to jurors is important (Cochran was actually talking to another lawyer), so we have the discussion with the ones we fear, but in the end we are there to win for our clients. That is the role of the advocate. Trying to win by honestly telling your story is the most likely way to win your case.
Have a trial coming up? Want to talk about jury selection? Need some help? Call me.