Follow the Bouncing Juror

I’ve heard lawyers say that trials are won or lost during jury selection. To that end, the well-heeled spend tens of thousands of dollars on jury consultants, whose role it is to pick just the right person to sit in judgment over a case.

They are wasting their money.

I can teach you all you need to know about jury selection in one word: bounce.

Consider your reaction to walking into a room full of strangers. In a matter of moments, you will find yourself speaking to one person, or group of people. How did you select that group or person? Bounce.

Bounce is nothing more than openness, a willingness to listen. We signal our willingness to do so in all sorts of ways. A person looking away, with a frown, and arms folded across their chest, is sending you a message: go away. They aren’t listening, and don’t want to listen.

Work a room of strangers sometime, and ask yourself, in the end, how you ended up with the person you spent the most time with. Nine times out of 10, it will be because that person conveyed, through word or deed, a willingness to listen to you. They made you feel welcome, or comfortable.

That’s bounce.

Jury selection is nothing more than the search for those who will listen. Or, more accurately, the process is really one of jury deselection: eliminating those who won’t listen to you.

Never forget for a moment that a trial is an adversary proceeding. Odds are, if my adversary loves you, I am going to find fault. I don’t want jurors disposed to think the lawyer on the other side is wonderful. I assume that jurors I love will be struck, or eliminated, by the other side.

The vehicle for getting rid of jurors just because you don’t like them is called a peremptory challenge.

Litigants, the law says, on both the criminal and civil side, are entitled to a fair and impartial jury. Thus, a party can challenge the suitability of any juror to sit “for cause,” a brief way of saying that because of some stated bias, life experience or attitude they cannot be fair and impartial as a juror. Typically, in criminal cases, jurors are struck because they would tend to believe a police officer’s testimony, because they think accused folks must be guilty, or their life experience makes them uncomfortable about sitting.

There are no limits to cause challenges

But often, jurors are less than candid about their biases and prejudices. This is especially so when it comes to race. Rare is the potential juror honest enough to say that race matters. Often, lawyers have to rely on non-verbal cues to decide whether a juror is telling the truth about the color line.

When the spoken words of a candidate for jury service are satisfactory, and there is nothing so obvious about their demeanor that it is obvious they can’t be fair, lawyers get a limited number of what are known as peremptory challenges. A lawyer can excuse a person without giving a reason. Lawyers are free to play their hunches.

I’ve tossed many a person from a panel just because I didn’t like their reaction to my questions.

I recall one potential juror in a murder case announcing in the presence of all assembled that he could not be fair to my client. Why? He reads this very column, and he doesn’t like my politics. Not only was he excused, but all the other panelists who sat through his outburst were also sent home. Haters are easy to spot, and easy to eliminate. I doubt we would have won that trial if that juror had been permitted to sit in judgment.

But what about the matter of race? Can lawyers get rid or jurors on account of their race?

The law prohibits that. Lawyers are not supposed to let race, or, for that matter gender, drive the decision to excuse a panelist.

But it happens all the time. And lawyers lie about it.

In Louisiana, a bunch of prosecutors are under scrutiny for striking black folks far more often that white persons. What to do about it is now before the United States Supreme Court, where argument will be held about the use of peremptory challenges on the basis of race next term.

In Caddo Parish, prosecutors use peremptory challenges three times more often against black potential jurors. A statistical analysis of convictions in the parish found that the likelihood of an acquittal increased in direct proportion to the number of people of color on a jury. Researches studying jury composition in other states — Alabama, North Carolina and Georgia — have noted a similar pattern.

Fancy that. Race matters.

That’s hardly news. I’ve struck people of color from cases involving claims of reverse discrimination, where Caucasians claimed victimhood, and in a case in which a white man killed a black man. Did race matter in my calculations?

I’m supposed to say it did not, but, that would be a lie. I worried that where potential jurors sat in relation to the color line would make it hard for some to hear what I wanted to say.

In the formal setting of a courtroom, a lawyer suspected of using race or gender to strike a juror can be challenged to state his reasons for excusing a person. It’s called a Batson challenge, taking the name of a 1986 case.

In such cases, the challenged lawyer has to state in open court why he struck a juror. The courts accept almost any reason at all, ranging from the fact that panelist had a beard, to the lack of eye contact, to just about any old pretext an artful pleader can conceive.

Indeed, in 2012, a North Carolina judge discovered a cheat sheet of excuses used by prosecutors to shield there racially discriminatory use of peremptories.

Lawyers get only a handful of peremptory challenges. Some critics think there ought to be none at all. Perhaps they are right. Experience suggests that, when it comes to race, almost everyone lies. 

Sometimes folks are bounced just because of the color of their skin.

Also listed under: Journal Register Columns


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