Impartiality is a myth. So the idea that you will start with an impartial jury or fact finder (maybe a Judge) misses the mark. We all have inherent bias and prejudice that colors our decision making. All of us.
Let’s start with a simple example involving cars. I have a bias (or preference) in favor of Westfalia vans and Porsche 911s. The two are polar opposites – sexy German sports car and utilitarian German fun wagon. If I had both in my garage I would be a happy camper. Over time I have had both but modern automobiles have taken my eyes away from each. So too the two grandkids I cart around daily.
But I am attracted to people who share similar interests. If you own a Sprinter you know what I am talking about. There are FB groups dedicated to owning, maintaining and building out Sprinters, and generally, when I see another Sprinter owner we talk. I am drawn toward the owner and trust that he or she speaks my language.
Or maybe you own a Mazda Miata – there are throngs of folks racing those each weekend. Their owners tend to do the same dance – they are part of a group, a club, a tribe. And that impacts how they view other folks.
Our individual bias impacts how we perceive each other. This is especially true when considering a potential fact finder.
In opposite, I have never thought much of folks who believed a 911 or its modern equivalent held a driver who was a jerk. You know the old joke – what’s the difference between a Porsche and a porcupine? The pricks are on the outside of the porcupine. But that simply illustrates the misguided prejudice of some folks! There are jerks driving Porsches and pretty much every other vehicle, but not all Porsche drivers are jerks.
Now, what about more serious issues in jury selection? How will potential factfinders react to the appearance of a defendant? How about a young Latino defendant with the number 13 on his forehead? Consider a young man standing trial with a shaved head and an Iron Cross tattoo showing out of his unbuttoned shirt. Or how about a fifty-something skin and bones female defendant who looks like she has spent the past years sucking on a meth pipe? Or the sixty-something preacher who stands accused of possessing child pornography?
Remember that first impression talk – “you never get a second chance to make a first impression.” Our potential juror may see the defendant and hear the charges and form an opinion based on a bias or prejudice that is inherent in his or her mind. Latinos with a number “13” likely conjure up the notion of a Mexican Mafia or gang member. A shaved head and Iron Cross – perhaps a motorcycle club (or gang) member. Think Hells Angels. Think big guys and wild parties and guns and drugs. Skin and bones fifty-year-old ? Well, you get the idea. Meth head. Preacher accused of child porn? Guilty! And that can happen (is likely to happen) from that first impression. Our individual bias (generally in favor of “safe” people who look like we look) and tendency to pre-judge others who are different (prejudice) causes us to react, even if we try to resist.
So your case and its story has to start here – with your client and the likely perceptions of the fact finder. I like to focus on these things:
First question – would I want to take my client home to dinner? This is a safety question. Can I trust him with my family? Will he or she be met with skepticism by my bride of nearly 43 years? Will my 3-year-old granddaughter run to hug or hide? Sound too simplistic? I am a simple country lawyer. But that inherent bias in favor of safe-appearing people is present in the home and in the courtroom. Take a good look at your client. What is your first reaction? If you wouldn’t feel safe with him or her, neither will the jurors.
Second question – who is my decision maker and can I calculate his or her inherent bias or prejudice? A couple years ago I tried a sexual assault case at an Air Force Base. I speak military, although Air Force represents a bit more sophistication than my Army cohorts. Still, I understood that the court members (the decisionmakers) would have military bearing and expect the same from my client. They would have a tendency to prejudge him because the system provides escape routes out of the courts-martial process. If he was in court, they would likely reason that he was guilty. On the other hand, they would look at the civilian “victim” making the claims differently than they would a military member. Could I craft a story from the facts of the case that would answer their inherent bias and prejudices? In particular, would NCOs on the panel judge my client more harshly when sitting in judgment with commissioned officers? Would the decisionmaker be able to follow the law and get past their first impression?
Third question – if your gut says run, should you do so or fight? In other words, can you win in view of your client, as well as the expected inherent bias and prejudice within the likely fact finders? The gut check is tough because it always causes me to be brutally honest with myself and with my client. I need to explore the client’s responses to the problems posed and see if he or she has a way around the problems. If not – then maybe we should be exploring another way out of the case.
And those discussions are brutal. I hate the process but I embrace it, suffering and honesty and all the worts! Next up – how can we craft that best version of the facts for our client?
My three-year-old granddaughter awaits with a box that says “Hungry Hippos!” I am biased in her favor, so I leave further discussion to another day.