Jury was out 2 days on a simple buy and bust, where the cops’ testimony was all over the place.  Finally a verdict:  Not Guilty.  But afterward, some jurors want to talk to the defense lawyer.  He’s told that the foreperson started deliberations with the statement, “He’s black, so he must be guilty.”

Granted, the end result was that the lone holdout, the foreperson, finally gave up her racist view.  Granted, the right verdict was reached.  Sure, the defendant sat in jail for more than a year awaiting trial, since he couldn’t make bail.  His kids lost a father.  His wife lost a husband.  But those are the normal consequences of getting mixed up in our “almost perfect” criminal justice system.

But what to do about the closet racist?  This was the question posed by the criminal defense lawyer who tried this case.  Despite his victory, he was sickened when he learned that this was the reason he sat there waiting for a verdict for 2 days.  So much risk.  Even winning, the penalty to the defendant was unacceptably harsh.  But then, despite his best efforts, a racist found here way into the first seat. 

There were many reactions to the question posed from lawyers and jury consultants who both commiserated and suggested that through the use of a series of voir dire questions, he would have significantly increased his chances of ascertaining the juror’s racist views.  This should come as no surprise to anyone who follows such matters, as we know that there is plenty of effort put into the science of determining how to get a fair jury.  Some people (including me) have questioned the validity of this science, but there’s no reason to open old wounds for this post because there was another sabot tossed into the gears of jury selection.

The question was posed:  So how do you manage to ask 5 questions of each of the 16 jurors in the box to determine if they’re racist (putting aside that you also have a few questions on other subjects, such as do they love cops and hate defendants), when you have a total of 20 minutes to question the panel?

Screeching halt.  Hold on a sec.  We forgot all about that.  We don’t always get hours and days to question individual jurors in garden variety cases.  Sure, the high profile murder cases let you pick a jury forever, but a buy and bust case is a 2 day trial, and you’ve got half a day to pick the jury. 

In a typical New York state court felony trial, the judge will tell you how much leeway you have to do voir dire.  Sure, you can argue for more time, and push the envelope while your standing before the panel, but eventually patience runs thin and the judge wants to get a jury selected and move on to trial.  After all trials are about witnesses and evidence, not just picking the jury.  Push the envelope too far and the judge will say something to cut you off at the knees.  Believe me, it isn’t pretty when that happens.

While there have been a ton of exceptionally good and interesting posts about conducting effective voir dire, most notably from Anne Reed at Deliberations, the utility of these recommendations in the typical trial is really in question.  We just don’t get a month to pick a jury for a 2 day trial.  No judge is going to let that happen. 

It’s perfectly understandable that people whose primary focus is jury selection discuss voir dire as if it can go on forever, delve into every area that could possibly matter, and take forever if necessary.  But this isn’t the reality that a trial lawyer faces.  Many times, we’re lucky to be able to get 2 or 3 questions out of each person in the box before time constraints force us to move on.  We often ask blanket questions of the entire panel because we know we’ll never have the time to do it individually.  And we know that we will never get a legit answer when we ask a blanket question, because people just don’t tend to respond to questions when they aren’t put to them directly.

If the answer isn’t going to be “get the judge to give you more time,” because that just isn’t going to happen, then what?  Do we end up with a closet racist in the box, despite our best efforts not to, or is there another answer?  How do we unearth something as insidious as a juror who believes that any black person on trial is guilty, given the practical constraints on jury selection?  It was a very good point, and I would very much appreciate an answer that deals with the problem under real life conditions.  Anybody?