So enamored we’ve become of the “scientific” approach to jury selection that we are shocked and appalled by the dirty little secret that most lawyers in the trenches base their decisions on venal stereotypes. And as fortune would have it, a string of stories has come along to make the point painfully clear.
Following my controversial post on the efficacy of a deaf juror, which raised the hackles of some knee-jerk liberals at Overlawyered, news has broken that a San Francisco Public Defender was instructed to keep Asians off a jury. Coming from an intern’s blog on MySpace (let that be a lesson about interns):
The blogger, Carrie Wipplinger, posted an entry on Sept. 3 about a case that she said involved a drunken man whom authorities found receiving oral sex in a car.
“I got to listen in on a conference regarding jury selection,” she wrote. “My bosses gave the following advice to the lawyer … don’t pick any Asian jurors, because (and I quote): ‘Asians don’t drink, they love Jesus, and they’re creeped out by everything.'”
She wrote that the lawyer followed that advice, and the client was acquitted.
So what would Clarence Darrow think of this? According to Anne Reed at Deliberations, Darrow would be right on board. Following up on her post about how a prosecutor could justify bumping fat people off the jury as a race-neutral explanation for having no blacks on board (fat people favor defendants, he claimed), Anne takes a stroll down memory lane to jury stereotypes in Darrow’s eyes:
Lawyer and jury consultant Mark Stanziano wrote me wondering if Clarence Darrow might have said it (fat people favor defendants). “Darrow had lots of thoughts about heavy set people, thin people, Baptists, Methodists, lots of stereotypes,” Mark wrote. “It was the way he saw the world and the people in it. Clearly, a different age, but one the prosecutor may have ‘read about.’”
It seems that Darrow had some quick and dirty rules about Irishmen, Englishmen and Presbyterians, which Anne has provided at length. And Darrow similarly made clear that stereotypes aren’t the best answer:
He is cutting-edge when he reminds lawyers that individual experiences easily trump stereotypes:There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.
Whether this is cutting edge is hard to say, since it’s difficult to imagine any time when stereotypes were considered more accurate than hard information. But it begs the question: When you have 3 minutes apiece to question the 45 potential jurors sitting in the box, how exactly are you supposed to get “up close and personal?”
Stereotyping jurors has a long and sordid history in jury selection, and if it was good enough for Darrow, who are we to question it? et we now know that there is one thing we can all agree on: Nobody wants a juror who reeks so badly of body odor that they can’t bear to be in the same courthouse. To quote the legal philosopher, Bob Ambrogi :
“The moral of the case: Justice may be blind, but it retains a healthy sense of smell.”
While it may be voodoo trying to figure out what another person truly has going on inside his head, we always have the olfactory sense to fall back on. Right, Clarence?
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Do you have any feelings about jurors who wear way too much perfume or cologne?
By the way, Issa, the Master Haiku Poet from the 19th Century, would be amused by the stereotype of Asians not drinking. In his day, most haiku was written, and blossoms viewed, during and after imbibing copious amounts of sake. Here’s a pair from his many sake poems (translated by David G. Lanoue):
plum in full bloom–
a house without sake
can’t be found
and, for a really cold winter’s night such as tonight in the Northeast:
out of sake
such is my life…
a cold night
I don’t know what happened to the haiku I put in the previous Comment (maybe Anne Skove hit the “Submit Comment” link for me prematurely). I’m going to try to include them again:
. . . many sake poems (translated by David G. Lanoue). Please remove this Comment, Scott, should the poems somehow appear above:
plum in full bloom–
a house without sake
can’t be found
and, for a really cold winter’s night such as tonight in the Northeast:
out of sake
such is my life…
a cold night
From my perspective, anything that impairs a juror or diverts attention away from the task at hand, presents a problem. But that’s because my focus is on giving the defendant a fair trial, rather than being fair to jurors, making excuses for individual choices or being politically correct. For me, a fair trial always comes first and there is no political agenda worthy of compromising that right.
Fat Ones, Thin Ones, Ones Who Smell Really Bad
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I had the good fortune to intern for a while at the SF Public Defender’s office in law school. There are a lot of Asian-Americans working there, including the boss, Jeff Adachi, who is very active in the community and a great head PD. In general that office is spectacular and very respected, especially amongst the people in our community that need their help.
First, if this was actually said, there is a very good chance that the attorneys “bosses” (there aren’t many bosses, there is a head of misdo, a head of felony, and the head honcho, that’s about it) that said this were actually Asian. Doesn’t excuse it, but it is what it is.
Second, and political correctness be damned, in my short experience there (and based on SF demographics) older Asian women tended to be conservative and side with the police. In other words, the cops are always right, and often they say as much in voir dire. Now this might just mean they were all smart and all knew that the quickest way off the jury was to say you always believed the police, but again, it is what it is.
Yes it is a generalization, but as you say, you have 3 minutes to get up there and you can’t exactly peer into people’s souls. If you have some information and real experience to go on, sometimes you have to use it, political correctness be damned.