“Counsel, while they’re being seated, I’ve prepared a full randomized list of the jurors for you,” the judge said. “Jimmy, would you mind handing these out?”
The randomized list was computer-generated, showing the order in which all jurors would be called up to the box. Back in the old days, the clerks used a Bingo cage and drew name cards out one by one. Nowadays, with jury pools of two and three hundred, a computer took all the names with their associated numbers and created a randomized list that showed the order in which they’d be called.
I quickly reviewed the list and flipped through some of the questionnaires to see what we were getting in this first batch and what was coming up in the next groups. What I saw put a lump the size of a grapefruit in my stomach. All of our best jurors, my “fives,” were in the first batch. This meant the defense would have enough peremptory challenges to get rid of all of them. I’d be able to save up my peremptories by “passing” and accepting the jury, but the minute the next batches were called, I’d have to start using them-most of them were “ones” and “twos”-our worst. And the next batch after that…I pulled out the questionnaires and looked at the grades…just as bad. I looked through the last batch. They were better, a few “threes” and “fours,” but it wouldn’t matter-we’d never get to them. I’d run out of challenges and be forced to accept the jury before they could get called.
It’s well known that the case is won or lost in jury selection. What’s less well known is that something as simple as jurors’ placement on a randomized list can mean you’ll never get a shot at the ones you need. Luck of the draw plays a much bigger role in our system of justice than anyone cares to know.
While the judge read some of the basic instructions that explained their duties as jurors, Declan and I exchanged notes about which jurors had to go.
Declan thought we had to bounce the black single mother of two whose brother was in prison for armed robbery and whose father had been murdered in a drive-by shooting. Next up was a librarian who’d never married or had children and so wasn’t our ideal profile-we preferred women with children-but she was relatively intelligent and well read. It wasn’t worth wasting a peremptory on her, and I’d bet the defense wouldn’t either. An older black man would normally have been my ideal juror. Conservative, articulate, and strong minded. But he’d said he was no fan of “this younger generation” and their “questionable values.” I had two kids who’d schemed to extort a million dollars. Not a love match.
Judge Osterman had said that he’d do most of the questioning and give each side half an hour for the first round, then ten minutes for each successive round. He started by running each juror through the standard list of questions that was posted on a bulletin board near the jury box: marital status, children, employment and spouse or significant other’s employment, prior contacts with law enforcement or the judicial system, any past or current situation that might affect their ability to be fair, and so on. Some of them had been covered in the questionnaire, so the questioning went quickly.
I watched as each juror answered, and made notes on tone of voice, attitude, and body language. “And now, I’m going to let the lawyers ask you some questions,” the judge said. “People?”
I smiled in what I hoped was a disarming way and thanked them for being there, as though they’d had a choice in the matter. I asked them about the prosecution’s problem points. Motive: We didn’t have to prove it. What did they think about that rule? If they believed the evidence proved someone was guilty but they didn’t understand why that person did it, could they still convict? I watched carefully as they answered. Only one seemed to be uncomfortable with the rule. A young mom, and the only obvious Ian-lover in the batch, who was addicted to the E! channel. It figured.
Then I asked, “If you heard that the victims had staged a phony kidnapping, would that make you believe the victims got what they deserved?” It wasn’t something any juror would want to admit to thinking, and it certainly wasn’t a legal reason to acquit Powers, but it was the kind of emotional issue that could make jurors look for a reason to acquit-biases that no one wants to own up to even privately, let alone out loud. The only way to handle hidden bias is to pull it out into the open. That way, there’s at least a chance someone in the jury room will remind the others that we talked about this in voir dire.
I got everyone to say they agreed that it would be wrong to ignore evidence of guilt just because the victims did something they didn’t approve of and-as I frankly admitted to the jurors-that the victims shouldn’t have done.
Then I went through the standard discussion of reasonable doubt and circumstantial evidence. Everyone nodded as though they understood. I knew many of them didn’t. That’s why I always end the discussion with a hypothetical to illustrate the concepts in simpler terms. “You understand reasonable doubt is a doubt founded in reason. Not just something you might imagine.” I turned to the librarian. “For example, Juror Number One-oh-eight, see that baseball on the bailiff’s desk?”
The librarian glanced over at his desk and quietly answered, “Yes.”
“If you saw the bailiff throw that baseball at Tricia’s desk and heard glass breaking, and then you walked over and saw that the vase on her desk was broken, you’d know beyond a reasonable doubt that Jimmy had broken it, wouldn’t you?”
“Well…if that’s the only thing on her desk that was broken…yes.”
“Exactly right. Now, it’s possible that in the very same moment Jimmy threw the ball, Tricia’s vase fell apart on its own, or that Tricia had taken out a hammer and smashed the vase herself, but would that be reasonable?”
The librarian blinked a few times. “Well…no, it wouldn’t. At least, not in my opinion.”
“So would you agree that in my example, there is no reasonable doubt that Jimmy broke the vase when he threw the baseball at Tricia’s desk?”
“Yes.”
I watched the others with quick glances during this exchange to see how they reacted. The older black man was looking impatient, and gave me a “duh, no shit” look. The young mother who was an Ian groupie looked perplexed-another great reason to bounce her. But the black single mother was watching me with a little smile on her face. She got it. The electronic engineer was sitting back in his chair with the forbearing look of one who’d been through the drill. Most of the others seemed interested. Like I said, a great group. It’d break my heart when the defense gave them the boot. The best I could do at this point was ask them lots of questions so I could use their answers to teach the rest of the jurors in the pool.
I turned to the young rocker with the semi-Mohawk; from his questionnaire I knew he was a stocker at Ralph’s Grocery Store. I didn’t intend to waste a peremptory challenge on him, but I didn’t figure him to be a great pick for our side. After all, we were “The Man.” But when I asked him if, knowing that Hayley and Brian had staged the kidnapping, he’d be unable to convict, he half snorted and said, “You kidding? No. Smoke him.”
I had to swallow to keep from laughing out loud. Terry, of course, wasn’t finding this so funny. Bye-bye, rock star. He wasn’t the only good surprise: most of the others turned out to be even better than I’d expected too.
And when the defense got done, not a single one of them would remain. By the time I’d finished my questioning, I was more depressed than before.
“Defense, you may question the jury.”